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TREATISE 


OX  THE 


LAW    OF     DOWER; 


PARTICrLARLV    WITH 


A  VIEW  TO  THE  MODERN  PRACTICE 


OF 


CONVEYANCING. 


BY    JOHN    JAMES    PARK, 
OF  Lincoln's  inn,  esq. 


FROMiTHB  LONDOX  £DITIOIT. 

«- ^_ 

I'UnLISIIKD   \\\ 

JOHN    S.   LITTELL, 

3l<niu   UoofesclUt    anTj   J)ublfsbet, 

No.   11    GEORGE   STREET, 

PHILADELPHIA. 
1S3G. 


T 


J.  VAN  COURT,  PRINTEK, 

48  Market  street 


ADVERTISEMENT. 


The  leading  object  of  the  following  treatise  is  to  exhibit  the  law  of 
Dower  in  its  application  to  the  modern  theory  and  practice  of  convey- 
ancing. It  is  to  Dower  in  its  character  of  a  dormant  incumbrance,  in  a 
far  greater  degree  than  with  a  view  to  its  remedial  or  possessory  quali- 
ties, that  the  attention  of  the  lawyer  is  called  in  the  present  state  of  prac- 
tice, and  that,  therefore,  the  compiler  has  directed  his  more  laborious 
cfibrts. 

The  present  essay  aims  not  only  at  economizing  the  time  too  often 
consumed  by  the  practitioner  in  searching  for  obscure  cases  through 
a  multiplicity  of  books,  but  also,  wheie  opportunity  offers,  at  leading  the 
mind  of  the  student  to  the  correct  practical  inferences  arising  from  the 
mass  of  scattered  law  which  is  to  be  found  on  this  subjoct.  The  writer 
is  not  unaware  of  the  arduous  nature  of  any  attempt  at  this  mode  of 
treating  it;  and,  he  feels  that  much  more  might  be  done  under  extended 
advantages,  than  his  very  limited  experience,  and  still  more  limited 
talents,  would  admit.  He  nevertheless  relies  with  some  confidence  on 
the  book,  such  as  it  is,  being  found  practically  useful. 

It  is,  perhaps,  one  of  the  greatest  advantages  arising  from  the  compo- 
sition of  distinct  treatises  on  tlie  dilfcrent  heads  of  law,  that  they  afford 
an  opportunity  which  even  long  practice  scarcely  supplies,  of  reducing 
an  immense  mass  of  isolated  authorities  and  dicta,  apj)arently  acknow- 
ledging no  higher  origin  than  the  Ua  lex  scripta  est,  to  something  like 
scientific  analysis,  and  induction;  or  at  least,  to  what  are  usually  called 
by  lawyers,  for  want  of  a  belter  term,  tirst  principles.  The  author  must 
confess,  that  he  cannot  flatter  himself  with  entire  success  in  reconciling 
or  systematising  all  the  authorities  uj)on  Dower;  but  from  the  very  na- 
ture of  the  conii)licated  jurisjjrudence  of  this  country,  or  rather  of"  the 
mode  in  which  it  becomes  accumulated,  it  is  not  to  be  expected  that  any 
application  shall  succeed  in  extracting  from  so  homogeneous  a  material, 
a  system  consistent  and  intelligible  in  all  its  parts,  on  any  given  subject. 
It  may  perhaps  even  admit  of  a  doubt,  whether  the  possession  of  extra- 
ordinary powers  of  discrimination,  and  great  command  of  knowledge, 
has  not  led  some  or  our  most  valuable  legal  writers  into  loo  systematic 
a  refinement,  by  referring  cases  to  jjrinciplcs,  and  reconciling  them  upon 
distinctions,  which  were  never  dreamt  of  by  the  judges  who  decided 
them,  and  the  inconvenience  of  which  is,  that  it  is  making  the  law  speak 
one  language  in  the  books,  and  another  in  the  treatises. 

It  might  perhaps  have  been  expected,  that  a  treatise  on  Dower  should 
embrace  the  law  of  Jointures,  and  Equitable  Satisfactions;  but  the 
writer  found  the  subject  too  extensive  to  be  comprehended  within  a 


735535 


V  ADVERTISEMENT. 

subordinate  head,  a'iiijiQ  same  time  that  it  was  wholly  unconnected  with, 
and  unillustrativc  ol',  the  general  law  of  Dower.  He  has  the  less  con- 
cern at  excluding  it,  from  the  consideration  that  it  has  been  already- 
treated  of  Vi'jth  much  attention,  in  several  late  compilations. 

Could  fhe  writer  persuade  himself  that  the  elucidation  of  a  single 
point  of  practical  occurrence  would  be  assisted  by  any  historical  discus- 
$ioii  of  the  origin  and  progress  of  the  legal  provision  in  question,  wheth- 
ei  in  this  or  foreign  countries,  he  would  not  have  thought  any  space 
appropriated  to  that  purpose  misapplied.  But  looking  at  it,  as  he  does 
after  habitual  recurrence  to  the  subject,  as  matter  of  mere  antiquarian 
learning,  wholly  inapplicable  to  any  purpose  of  practical  utility,  he  feels 
that  he  should  be  sacrificing  too  much  to  method  and  to  usage,  by  devot- 
ing any  part  of  the  following  pages  to  such  disquisitions;  impressed  as 
he  is  with  the  acute  remark  of  Mr.  Fearne  (though  without  any  adop- 
tion of  its  concealed  personality,)  that  these  and  many  similar  inquiries 
"  may  be  left  to  the  investigation  of  erudite  curiosity,  or  the  represen- 
tations of  prolific  ingenuity,  without  much  concern  to  those  whose  only 
interest  in  the  subject  rests  on  the  calls  of  their  professional  attention  to 
the  practical  application  of  the  rules  of  law  at  this  day."(a) 

The  many  who  are  acquainted  with  the  stupendous  acquirements  of 
Mr.  Preston,  as  a  property  lawyer,  and  the  few  who  might  chance  to 
have  known  that  the  professional  studies  of  the  compiler  of  these  pages 
were  pursued  under  his  auspices,  might  have  found  no  cause  of  surprise 
if  a  treatise  on  one  of  the  recondite  heads  of  the  law  of  real  property 
had  sought  the  protection  of  a  gentleman,  who,  probably,  of  all  men 
living,  is  most  competent  to  judge  whether  that  protection  could  have 
been  deservedly  bestowed.  That  the  author  has  declined  inscribing  his 
book  with  the  sanction  of  that,  or  any  other  accredited  name,  is  nei- 
ther because  he  is  less  sensible  of  professional  talents  than  other  men, 
or  that  he  should  be  more  scrupulous  in  the  acknowledgement  of  per- 
sonal kindness,  where  he  might  have  been  fortunate  enough  to  be  the 
subject  of  it;  but  he  is  desirous  rather  to  commit  his  book,  in  the  spirit 
of  candour,  to  the  simple  test  of  practical  utility,  than  to  become  the 
candidate  for  bespoken  credit.  If  it  should  have  the  good  fortune  to 
obtain  approbation,  he  will  be  enabled,  without  undue  assumption,  to 
accept  it  as  the  reward  of  his  own  industry;  and  if  it  should  fail,  he 
will  involve  no  worthier  name  in  the  reproach  of  patronizing  that  which 
was  not  deserving  of  it. 

J.  J.  P.      » 

(a)  Cont.  Rem.  185,  6th  edit. 
INNER  TEMPLE. 


CONTENTS. 


Chap.  I.  Introductory  Observations,  1. 

Chap.  IT.  Of  Marriage  with  reference  to  the  law  of  Dower,  7. 

Chap.  III.  Of  the  application  of  the  rule  requiring  a  seisin  in  the  husband  during  the 
coverture,  in  order  to  the  attachment  of  a  title  of  Dower,  24. 

Chap.  IV.  Of  what  estate  in  pointof  quality  and  quantity  whereof  the  husband  is  seised, 
a  woman  will  be  dowable,  47. 

Chap.  V.  Of  the  modes  of  limiting  lands  on  conveyances  to  purchasers,  so  as  to  prevent 
the  attachment  of  a  title  of  Dower,  83. 

Chap.  VI.  Of  titles  of  Dower  in  the  wives  of  trustees  and  mortgagees,  and  of  equitable 

relief  against  the  same,  100. 
Chap.  VII.  Of  what  property  whereof  the  husband  is  seised  the  wife  shall  be  endowed, 

in  respect  of  the  nature  and  qualities  thereof,  110. 

Chap.  VIII.  Of  the  circumstances  under  which  a  title  of  Dower  will  be  defeated  after 

having  once  attached,  141. 
Chap.  IX.  Of  the  means  by  which  a  title  of  Dower  may  be  extinguished,  discharged, 

or  suspended  by  the  act  of  the  party,  191. 
Chap.  X.  Of  the  circumstances  under  which  a  title  of  Dower  will  be  forfeited  by  reason 

of  crime,  or  excluded  by  reason  of  personal  disqualification,  217. 
Chap.  XL  Of  alienations  and  charges  by  the  husband  alone,  previous  and  subsequent  to 

the  attachment  of  a  title  of  Dower,  231. 
Chap.  XII.  Of  the  consummation  of  the  title  of  Dower  by  the  death  of  the  husband,  247. 
Chap.  XIII.  Of  assignment  of  Dower,  250. 

Chap.  XIV.  Of  the  remedies  for  the  recovery  of  Dower  at  law,  283. 
Chap.  XV.  Of  the  remedies  for  the  recovery  of  Dower  in  equity,  317. 
Chap.  XVI.  Of  the  situation  of  a  Dowress  before  and  after  assignment,  and  of  the 

nature  and  incidents  of  her  estate,  334. 
Chap.  XVII.  Of  the  circumstances  under  which  a  Dowress  shall,  or  shall  not  have  the 

benefit  of  an  attendant  term,  and  of  the  protection  aflbrded  to  purchasers  by  assign- 
ments of  terms,  363. 


"    \   '* 

^     £l     1^ 


INDEX    OF    CASES. 


The  pages  referred  to  are  those  beween  brackets,  [  ] 


PAGE 

Abtnodon's  case  272 

Aleway  v.  Roberts  309 

Alsop  V.  Bowtrell  22 

Altham's  case  213 

Ambrose  v.  Ambrose  124 

Amcotts  V.  Catherick  44 

Arundel's  (Earl  of)  case  82 

Atkins  V.  Glover  358 

Attorney  General  v.  Scott      129,  130,  136 

Attorney  General  v.  Lockley  127, 133 

Attorney  General  v.  Thruxtoa  365 

Aughtie  V,  Aughtie  19 


Baker  v.  Child  202 

Banks  v.  Sutton  128,  129,  130,  131, 135, 
136, 137, 138, 139,  350 
Barker's  (Sir  Rob.)  case  28 

Barker  v.  Taylor  362 

Barkshire  (Countess  of,)  v,  Vanlore  37, 142, 

145 


Brook's  case 
Broughton  v.  Randall 
Browne's  case 
Brown  v.  Gibbs 
Brown  v.  Randle 
Brown  v.  Smith 
Buckeridge  v.  Ingram 
Buckworth  v.  Thirkell  174, 182, 


Barnes  v.  Bulwer 

310 

Barrington  v.  Horn 

?03 

Barty  v.  Herenden 

202 

Basset  v.  Nosworthy 

374 

Bateman  v.  Bateman 

108 

Bate's  case 

57,77 

Bates  V.  Bates 

77 

Beaumont  v.  Dean 

293 

Beckwith's  case 

200 

Bedingfield's  case 

275 

Belfield  v.  Rous 

305,  308 

Benson  v.  Scott 

235 

Berry  v.  Wade 

203 

Bevant  v.  Pope 

105 

Bickly  V.  Bickly 

267 

Blitheman  v.  Blitheman 

234 

Bodmin  v.  Vandebendy 

365,  371,  379 

Bodmyn  v.  Child 

300,  301 

Booth  V.  Lindsay 

294,  300 

Booth  V.  Lambert 

262,  271,  337 

Boothby  v.  Vernon 

64,  65,  66 

Bottomley  v.  Fairfax 

124 

Bowles'  (Lewis)  case 

61,  74,  94 

Bragg's  case 

111 

Burdon  v.  Burden 
Burgess  v.  Wheate 
Butler  V.  Ayre 

Cally's  (Margery)  case 
Carhampton  v.  Carhampton 
Casborne  v.  Scarfe 
Cave  V.  Holford 
Cham  V.  Dover 
Chaplin  v.  Chaplin 
Chinham  v.  Preston 
Clay  v.  Sharpe 
Colson  v.  Colson 
Colt  v.  Colt 
Colthirst  v.  Bejushin 
Compton  V.  Bearcroft 
Coot  v.  Berty 
Coots  v.  Lambert 
Cordal's  case 
Cord  el  v.  Clifton 
Cordell's  case 
Corder  v.  Morgan 
Corsellis  v.  Corsellis 
Cotton  v.  Westcott 


PAGE 

347,348 

42 

244 

301,  364 
106 
308 
114 

184, 186, 

189,  190 
295 
130 
308 


Brickhead  v.  Archbishop  of  York 


22'i 


142, 143 

33, 315 

126 

188 

46  244 

129, 159, 160',  161 

10 

98 

74 

124 

365 

23 

224 

263,  270 

64,  68,  69,  70 

244 

7» 

98 

303 

249 

Countess  of  Barkshire  v.  Vanlore,  37, 142 

145 

Cowley  v.  Anderson  37 

Cox  V.  Chamberlain  188 

Crabtree  v.  Bramble  136 

Crave  v.  Broughton  312 

Cunningham  v.  Moody  126 

Curtis  V.  Curtis  136,  309,  322,  323,  327, 
329,  330,  333 

Dalrymple  v.  Dalrymple  8,  21,  23 

Daly  V.  Linch  124 


INDEX  OF  CASES. 


vn 


Dara  port's  case 

312 

Dam|x>rt  v.  Wright 

311 

Danby'H  cuso 

207 

D'Arcy  v.  Blake 

55, 

120, 

i:i8. 

329 

Davis  V.  Jones 

204 

Delver  v.  Hunter 

332 

Dennis  v.  Uennis 

286, 

307 

Dimmock's  case 

29 

Dixon  V.  Savilio 

138, 

139 

Dobsoii  V.  Dobson 

304, 

30N 

Dcxlson  V.  Ilaj 

120 

Doc  V.  liiitton 

179 

Dolin  V.  Coltman 

209,210,211, 

31M 

Dormer  v.  Fortescue,  321,  324,  329,  330, 

371 

Dormer  v.  Parkhurst  74 

Downman's  case  197,  IJM) 
Dudley  v.  Dudley           131,  S&'j,  36H,  374 

Duncomb  V.  Duncomb  73,  H5 

Drybutter  v.  Bartholomew  113 

Eare  v.  Snow  193 

Easterby  v.  Easterby  289 

Eaton  V.  St.  John  48 

Egertnn'ri  (Dame)  case  302 

Emery  \ .  Wase  203,  205 

Fines,  the  case  of  51 

Fislier  v.  Forbes  355 

Fitzhiigh's  case  313 

Flavin  V.  Ventrice  171,  183 

Fletcher  v.  Robinson  124 

Foljambe's  case  300 

Forder  v.  Wade  128 

Foster  v.  Kirby  295 

Frevil's  (Baron)  case  235 

Gamock  v.  Cliff  347 

Gate  V.  Wiseman  219,  220 

Gerrard  v.  Gcrrard  121 

Gibson  v.  Wells  358 

Glefold  V.  Carr  298,  311 

Godwin  v.  Winsmorc  129 

Goldingliam  v.  Saunds  299 

Goodenoii<rli  v.  (ioodenough  177,273 

Goo(Hll  V.  Brigham  91 

Goodridjjo  v.  Warburton  215 

Goodriglit  v.  Meade  2;i3 

Gore  V.  Prrdue  29S 

Green  v.  Harvey  220 

Green  v.  Roe  300 

Grey  v.  Williams  299 

Griffin  v.  Taylor  202 

Grigby  v.  Cox  281 

Haddon's  case  202 

Hale's  (Dame)  case  229 

Hall  c.v  jiiirte  23 

Hall  V.Hardy  202 

Hamilton  (Duke  of)  v.  Mohua  370 

Harpool  v.  Kent  07 

Harris  v.  Hicks  21 

Haveriugton's  case  200,  201 


Hawe'scase 
Ha  worth  v.  Herbert 
Haydoii  V.  Gould 
Hearle  v.  (jreenlmnk 
Herbert  v.  Hinion 
Heyns  v.  V'illiirs 
Heywo<xl  v.  Smith 
Higham  v.  Bedingfield 
Hill  V.  Adams 
llmton  V.  Hinton      * 
Hilchens  V.  Hitchens         54, 
Hohy  V.  Hoby 
Hody  V.  Lunn 
Holland  v.  Lee 
I  looker  V.  J  looker 
Howard  v.  Cavendish 
Howard  v.  Mansfield 
Howell  V.  George 
Huddiestone  v.  Huddlestone 

Jackson  v.  Parker 
Ilderton  v.  Ilderton 
Innes  v. Jackson 
Jones  V.  Morley 

Kiggil  v.  Player 
Keinpe  v.  Risbie 
Kent  V.  Harpool 
Kent  V.  Kent 
Kent  V.  Withby 
Keltillesby  v.  Kettillesby 
Kettleby'scase 

Lampet's  case 
Lavender  v.  Blackstone 
Lindsay  v.  Gibbons 
Lmdscy  v.  Lindsey 
Longville's  case 
Lovie'i-'case 
Low  v.  Burron 
Lucas  v.  Calcraft 

Macliell  v.  Clarke 
Maundrcll  v.  Maundrell 
Maunsfield's  case 
Maynye's  case 
Megott  v.  Megott 
Menvill's  case 
Merrill  v.  Rumsey 
Michell  v.  Hyde 
Moor  V.  Black 
Mordant  v.  Thorold 
Morris  v.  Stephenson 
Morrison's  case 
Moseley  v.  Taylor 
Mundy  V.  Mundy,   273,323, 


306 

225 

14 

120 

29S 

172 

51 

224 

375 

105,  106 

79,  300,  307 

259,  272 

202 

315 

66,70 

112 

271 

204 

273 

208,210,212 

22,  289 

lOG,  210 

199 

235 
3:30 
67 
305,  307,  311 
227 
214 
253 

196 

211 

332 

294 

272 

94 

49 

273,  332 

50,  52,  233 

188, 190,  304 

222 

220,  221 

273 

222,311,313 

59 

285,  287,  300 

319 

309 

203,  205 

16 

44 

325,  326,  329 


Nash  V.  Preston 
Naylor  v.  liildwin 
Neale  v.  Roberts 
Noel  V.  Jevon 

Oliver  v.  Richardson 


103, 104, 1ft-),  106 

208,  212 

38 

ia5 

332 


Vlll 


INDEX  OF   CASES. 


Osmand  and  Uxor 

154 

Sneyd  v.  Sneyd 

45,  244,  272 

Osmond's  case 

145 

Solly  V.  Whitfield, 

212 

Otway  V.  Hudson 

128 

Southcoat  V.  Manory 

209,  212 

Outread  v.  Round 

203 

Spiller  V.  Andrews 

306,  308 

Oxford's  (countesa  of)  case 

253 

Squire  v.  Compton 

370 

Staple  V.  Hayden 

286 

Paine's  case 

158,  184,  312 

Stoughton  V.  Leigh,  110, 

116,  236,  238, 

Palmes  v.  Danby 

350 

254,258 

Paris's  case 

156 

Stowel's  (Lady)  case 

20,  312 

Parker  v.  Blicke        * 

235 

Summer's  (Ann)  case 

311 

Parteriche  v.  Powlet, 

356 

Summer  v.  Partridge 

36,172 

Partridge  v.  Partridge, 

144 

Sutton  V.  Rolfe 

42 

Paynell's  case 

224,  225 

Swannock  v.  Lyford 

375 

Pennington  v.  Cooke 

81 

S  Wayne's  case 

244 

Penrice  v.  Penrice 

306,  308 

Swayne  v.  Fawkener 

113 

Pheasant  v.  Pheasant 

300, 364 

Sweetapple  v.  Bindon 

126 

Portington's  case 

37 

Swift  d.  Neale  v.  Roberts 

38 

Powell  V.  Weeks 

20 

Sydney  v.  Sydney 

223 

Pride  v.  Earl  of  Bath 

21 

Pruett  V.  Drake 

349 

Thomas  v.  Thomas 

317 

Pulvertoft  V.  Pulvertoft 

211 

Thorne  v.  Rolff 

248 

Purefoy  v.  Rogers 

62,  67,  68,  69 

Thornton  v.  Dixon 

107 

Thynn  v.  Thynn 

115,  302.  308 

Radnor  v.  Rotheram        124, 364, 366,  371 

Tiffin  V.  Tiffin 

300,  364 

Radnor  v.  Vandebendy 

371,  378 

Tooke  V.  Glasscock 

52,53 

Rennington  v.  Cole 

21 

Twiss  V.  Cotton 

314 

Rennington  v.  Whithipole 

20 

Twist's  (Anne)  case 

312,  314,  315 

Rex  V.  Fielding 

15 

Turing,  ex  parte 

16 

Rex  V.  Inhabitants  of  Brampton               15 

Rex  V.  Lady  Portington 

249 

Vaughan  v.  Atkins 

29 

Rex  V.  Painswick 

335 

Villers  v.  Hanley 

294 

Rex  V.  Preston 

17 

Riche's  case 

305 

Wallis  V.  Everard 

319 

Roach  V.  Garvan 

21 

Walker  v.  Nevill 

306,  308 

Roberts  v.  Dixwell 

126 

Wakefield  v.  Child 

332 

Robins  v.  Crutchley 

286,  288,  283 

Watts  V.  Ball 

126 

Robinson  v.  Bland 

22, 28 

Wentworth  v.  Wentworth 

264 

Robinson  v.  Fletcher 

129 

Weyland's  case 

249 

Rochester  v.  Venters 

172 

Wheatley  v.  Best 

300 

Rowe  V.  Power              263, 267,  269, 315 1 

White  V.  Robinson 

271 

Whitfield  V.  Fausset 

90 

Sammes  v.  Payne          168, 

169, 170,  183 

Wickham  v.  Enfield 

289 

Sands  v.  Tomlinson 

202 

Wilde  V.  Fort 

188 

Seagrave  v.  Seagrave 

20 

Wild  V.  Wells 

317 

Seymour's  case 

51,  52, 142 

Williams  v.  Drew 

300 

Shaw  V.  Thompson 

48 

W^illiams  V.  Lamb          138,  327,  328,  330 

Shelly's  case 

26 

Williams  Wray 

364,  369 

Shute  V.  Shute 

20,  319 

Wiscot's  case 

59 

Simpson  v.  Gutteridge 

280 

Witham  v.  Lewis 

26 

Slowman'scase 

245 

Withers  v.  Pinchard 

203 

Smith  V.  Angel 

284 

Wood  V.  Gaynon 

356 

Smith  V.  Smith 

106, 107,  298 

Worgan  v.  Ryder 

333 

Snell  V.  Clay 

366 

TREATISE  ON  DOWER. 

CHAPTER  I. 
Introductory  Observations. 

In  the  instance  of  the  Icti;al  provision  now  under  consideration,  its 
remote  history,  as  furnished  by  antiquaries,  throws  no  light,  even  to  the 
profound  lawyer,  upon  the  practical  consideration  of  the  subject.  The 
doctrinal  peculiarities  attaching  to  the  interest  in  real  property  called 
Dower,  and  their  application  to  the  circumstances  of  modern  practice, 
are  exclusively  referrible  to  an  order  of  things  terminating  in  the  prin- 
ciples of  the  common  law  of  England.  Even  the  ingenious  attempt  of 
Chief  Baron  Gilbert  to  elucidate  the  law  of  Dower,  by  reference  to  the 
circumstances  of  feudal  tcnure,(rt)  is  but  little  calculated  to  convey  any 
real  satisfaction  to  the  mind  of  the  practical  lawyer;  or,  with  the  excep- 
tion of  very  few  points,  to  give  intelligence  to  his  general  conceptions 
on  this  head  of  property  law.  In  a  treatise  pretending  to  no  higher 
characterthanthat  of  practical  utility, it  seems  enough  *there-  r  «<,  n 
fore  to  refer  the  curious  to  the  discussions  concerning  the  ori-  ^  J 

gin  and  history  of  Dower  in  foreign  countries,  and  of  its  introduction 
into  this,  which  are  to  be  found  in  the  works  referred  to  below. (/6) 

It  should  however  be  noticed,  as  a  circumstance  occasionally  exer- 
cising an  influence  in  comparatively  modern  decisions,  that  from  the 
earliest  periods  of  the  existence  of  the  common  law  in  this  country,  a 
very  extraordinary  degree  of  favour  was  bestowed,  in  the  administration 
of  justice,  on  this  provision  for  the  support  of  a  wife  surviving  her  hus- 
band. The  vigilance  of  the  courts,  in  watching  over  her  interests,  is 
very  amply  displayed  in  the  Year  Books  and  other  early  reports.  Dower 
was,  indeed,  proverbially  the  foster-child  of  the  law,  and  so  highly  was 
it  rated  in  the  catalogue  of  social  rights,  as  to  be  placed  in  tlie  same 
scale  of  importance  with  liberty  and  life.  Favorabilid  in  lege  suntj 
vit(i,fiscus,  das,  libertas,  was  the  maxim  in  the  courts;  and  is  frequently 
cited  by  the  old  text  writers  and  reporters,  (c)     At  this  day,  when  the 

(a)  See  the  tract  on  Dower  appended  to  Gilliert  on  Uses. 

{b)  1  Crui.  Dig.  2d  ed.  174;  2  Ul.  Com.  1*29,  \X] ;  Prest.  on  Est.  Ch.  'Dower;'  Rob. 
Gavelk.  15'J;  Gilb.  on  Uses,  3.54,  ct  scq.  ;  2  Uac.  Al.r.  Ufjf). 

(c)  "The  tenant  in  Dower  (says  Lord  Bacon)  is  so  much  favoured,  as  that  it  is  the  com- 
mon by-word  in  the  l;iw,  that  the  law  favourclh  three  things  ;  1.  Life  ;  2,  Liberty  ;  3.  Dower." 
Reading  on  Uses,  37  ;  and  see  Jenk.  cent.  1.  ca.  87  ;  cent.  7.  ca.  15  ;  Cro.  Jac.  11 1  ;  9  Co. 
17  b.\  Eng.  Lulw.  227  ;  1  Keb.  8G. 


PARK  ON  DOWER. 


existence  of  Dower  is  rarely  adverted  to  even  by  professional  men,  in 
any  other  light  than  as  a  dormant  incumbrance  on  a  title,  it  is  difficult 
altogether  to  recognise  the  coherency  of  the  proposition;  but  considering 
j^        -,  the  age  referred  to  as  one  in  which  the  ^domestic  affections  do 
L  -^  not  appear  to  have  been  so  uniform  in  their  action  as  in  later 

times,  and  in  which  the  capacity  of  making  a  testamentary  provision  for 
the  wife  out  of  the  real  estate  did  not  even  exist,  while  the  personal 
property  of  the  most  wealthy  was  comparatively  trifling,  the  necessity 
of  keeping  a  watchful  eye  over  the  only  certain  resource  of  widowhood 
is  strongly  indicated.  (^/) 

In  modern  times,  many  causes  have  tended  to  diminish  the  popularity 
of  this  legal  provision.  Independence  of  mind,  as  well  as  the  finer 
sensibilities,  revolt  from  the  idea  of  a  stated  compulsory  appropriation 
of  property  in  a  case  where  moral  duty,  and  the  domestic  affections, 
afford  a  surer  pledge  among  the  virtuous  than  positive  institutions. 
But  a  more  general  reason  for  disfavour  has  arisen  in  the  increased 
expense  occasioned  by  the  attachment  of  the  title  of  Dower  in  all  cases 
where  real  property  is  to  be  pledged,  or  converted  into  money,  in  the 
way  of  sale  or  mortgage.  In  the  multifarious  transactions  of  modern 
times,  this  becomes  an  object  of  no  slight  consideration;  and  in  small 
purchases,  the  expense  of  levying  a  fine  has  often  been  very  severely 
felt. 

Universal  consent  seems  now  to  have  designated  the  provision  for- 
merly made  by  the  law  with  so  much  care,  as  an  incumbrance,  the  anti- 
cipation of  which  is,  in  every  case,  to  be  desired.  The  most  extensive 
practitioners  of  the  present  day  will  hardly  produce  an  instance  where 
a  title  of  Dower  has  been  purposely  suffered  to  attach  upon  purchased 
^  -,  lands.  Except  in  cases  of  inadvertency  or  unskilfulness,  or 
L  J  *from  the  short-sighted  economy  of  taking  a  conveyance  in 

fee,  because  the  purchaser  does  not  happen  to  be  married  at  the  time  of 
the  purchase,  an  instance  very  rarely  indeed  occurs  in  which  property- 
becomes  liable  to  the  title  of  Dower  in  the  hands  of  a  purchaser.  It  is 
to  cases  where  a  person  becomes  entitled  to  property  by  heirship,  or 
under  the  limitations  of  wills  or  settlements,  that  we  are  generally  to 
look,  at  this  day,  for  the  occurrence  of  such  a  title. 

Dower,  at  the  common  law,  is  the  sole  subject  of  this  treatise.  There 
are,  indeed,  other  kinds  of  Dower;  which  are  treated  of  by  the  law 
books;  as  Dower  ad  ostium  ecclesise,  Ex  assensu  patris,  and  De  la 
plus  belle,  which  have  long  since  become  obsolete;  as  well  as  Dower  by 
the  custom  of  Gavelkind  and  Borough  English,  which  are  confined  to 
certain  local  districts;  and  Freebench,  which  applies  exclusively  to 
copyhold  lands.  The  former  has  been  treated  of  by  Mr.  Robinson  in 
his  "  Common  Law  of  Kent;"  and  the  latter  by  Mr.  Watkins  in  his 
"Treatise  of  Copyholds."  These  subjects  are  therefore  mentioned,  if 
at  all,  for  the  purpose  of  illustration  only.  The  author  is  too  sensible  of 
the  increasing  incumbrance  of  a  law  library  to  indulge  in  expositions  of 
what  others  have  already  expounded,  perhaps  better  than  he  could  do 
himself; — and  he  is  too  well  aware  of  the  immense  extent  of  reading 
required  for  the  attainment  of  sound  practical  knowledge,  to  trifle  with 
that  species  of  learning  which  is  recurred  to,  if  ever,  only  for  curiosity. 

(d)  See  Harger.  Co.  Lilt.  30  b.  note. 


INTRODUCTORY  OBSERVATIONS.  3 

Subject  to  the  slight  qualifications  to  which  almost  *every  J.  ,-  -. 
legal  clefinitioii  is  liable,  and  which  will  be  gathered  under  ■-  -* 

the  difrcrent  heads  of  the  following  treatise,  Dower,  by  the  common  law, 
may  be  delined  to  be — an  estate  for  life — in  the  third  part — of  the  lands 
and  tenements — of  which  the  husband  was  solely  seised — either  in  deed 
or  in  law — at  any  time  during  the  coverture — of  a  legal  estate  of  inheri- 
tance— in  possession — to  which  the  issue  of  the  wife  might  by  possibili- 
ty inherit — and  which  the  law  gives — to  every  married  woman — not 
labouring  under  any  incapacity  of  taking  a  legal  benefit — who  survives 
her  husband — to  be  enjoyed  by  such  woman  in  severalty — by  metes 
and  bounds — from  the  death  of  her  husljand — whether  she  have  issue  by 
him  or  not — having  for  its  oI)ject  the  sustenance  of  herself,  and  the 
nurture  and  education  of  her  children,  if  any; — and  the  right  to  which 
attaches  upon  the  land  immediately  upon  the  marriage,  or  as  soon  after 
as  the  husband  becomes  seised — and  is  incapable  of  being  discharged  by 
the  husband  without  her  concurrence. 

It  will  be  ol)served  that  this  estate  arises  solely  by  operation  of  law, 
and  not  by  force  of  any  contract  exj)ress  or  implied  between  the  parties; 
it  is  tiic  silent  etfect  of  the  relation  entered  into  by  them;  not  as  in  it- 
self incidental  to  that  relation,  or  as  implied  by  the  marriage  contract, 
but  merely  as  that  contract  calls  into  operation  the  positive  institution 
of  the  municipal  law. 

This  view  of  the  subject,  which  an  attentive  consideration  of  all  its 
circumstances  will  fully  establish,  is  also  borne  out  by  the  modern  prac- 
tice of  courts  of  equity  in  denying  dower  to  be  a  matter  of  ^  *  «  n 
substantive  ^equitable  jurisdiction;  but  at  no  very  distant  *-  -• 

period,  great  difficulties  were  experienced  in  consequence  of  a  notion 
which  had  been  adopted  by  some  of  our  equity  judges,  and  particularly 
by  Sir  Joseph  Jekyll,  that  dower  was  a  right  arising  ex  contractu. 
The  author  has  adverted  more  particularly  to  the  fallacies  of  this  notion 
in  a  subsequent  part  of  this  work,  which  treats  of  the  exemption  of  Equi- 
table Estates  from  the  title  of  Dower. 

For  all  the  purposes  of  the  practical  conveyancer,  it  is  of  more  im- 
portance to  consider  the  subject  of  Dower  in  its  character  of  an  incum- 
brance, that  in  that  of  a  remediable  right,  or  of  a  right  reduced  into  an 
estate  by  assignment;  since  it  is  very  rarely  that  he  is  required  to  advise 
upon  the  existence  of  a  title  of  Dower  with  a  view  to  its  actual  prosecu- 
tion, while  his  attention  is  liable  to  be  called,  by  every  day's  practice, 
to  the  detection  of  a  dormant  title  in  the  wife  of  a  vendor,  mortgagor, 
or  former  owner,  in  the  ordinary  process  of  investigation  on  belialf  of  a 
purchaser  or  mortgagee.  But  for  tiie  purposes  of  practical  discussion, 
the  right  and  the  remedy  are  frequently  convertible  terms,  and  there 
are  some  points  connected  with  the  learning  respecting  the  remedies  for 
Dower  wliich,  from  their  influence  upon  practice,  deserve  the  peculiar 
consideration  of  the  student  in  property  law;  particularly  that  branch  of 
the  subject  which  relates  to  the  possessory  bar  to  the  dowress  by  the 
existence  of  a  prior  legal  term  of  years,  and  the  circumstances  under 
Avhich  that  bar  will  or  will  not  be  relieved  against  in  a  court  of  equity. 


PARK  ON  DOWER. 


[    *7    ]  •CHAPTER  II. 

0/"  Marriage,  with  reference  to  the  law  o/ Dower. 

In  treating  of  Dower,  it  has  been  customary  to  consider  it  as  founded 
on  the  three  successive  circumstances  of  Marriage,  Seisin,  and  Death  of 
the  Husband.  The  concurrence  of  the  two  former  is  properly  the 
ground-work  of  the  title  of  dower;  the  latter  is  its  consummation. 

This  chronological  arrangement  having  at  least  the  convenience  of 
obviousness,  has  been  here  followed. 

The  subject  of  Marriage,  so  far  as  it  is  connected  with  the  law  of 
Dower,  is  open  to  considerations  which  call  for  some  degree  of  attention 
and  discrimination  on  the  part  of  the  student,  and  may  even  exercise  the 
acuteness  of  the  experienced  lawyer.  The  obvious  business  of  the  pre- 
sent treatise  is  rather  to  point  out  the  principles  and  distinctions  which 
are  to  be  borne  in  mind  in  applying  the  numerous  cases  on  marriage  to 
questions  of  Dower,  than  to  enter  upon  any  substantive  discussion  of  the 
cases  themselves. 

By  the  ecclesiastical  law,  as  it  stood  previous  to  the  marriage  act, 
and  as  it  still  stands  as  to  cases  falling  within  the  exceptions  of  that  act, 
the  existence  of  matrimony  involved  a  two-fold  consideration;  com- 
prising, within  that  general  name,  the  distinct  facts  of,  1st,  the  espou- 
P  ^„  ,  sals,  or  personal  contract  ^between  the  parties  to  become 
•-  -'  husband  and  wife;  and,  2diy,  the  celebration  of  that  con- 

tract in  facie  ecclesise.  The  espousals,  or  matrimonial  contract,  which, 
though  requiring  no  set  form  or  ceremonial,  was  the  substance  or  bond 
of  the  nuptual  relation,  was  of  two  kinds,  viz.  per  verbd  de  prsesenti, 
or  per  verbd  de  futuo.  The  former  of  these,  in  the  contemplation  of 
the  ecclesiastical  law,  amounted  to  very  matrimony,(e)  the  contract  be- 
ing indissoluble  by  any  agreement  of  the  parties;  and  rendering  any 
subsequent  marriage  of  either  of  them  with  any  third  person  absolute- 
ly void.  But  though  espousals,  or  affiance,  as  it  is  sometimes  termed, 
was  thus  the  very  substance  of  matrimony,  and  even  by  the  temporal 
lawyers,  the  terms  affiance  and  marriage  were  often  promiscuously  used, 
yet  it  does  not  seem  to  have  been  allowed  that  espousals  alone,  unac- 
companied by  celebration,  should  confer  the  ciA^el  rights  of  Dower(y)  or 
legitimacy;  but  to  obtain  these  temporal  advantages  it  was  requisite  that 
the  contract  of  matrimony  should  be  celebrated  m  the  face  of  the  church. 
And  though  in  one  case  a  woman  who  had  made  a  contract  of  marriage 
per  verbd  de  presenti,  but  whose  marriage  had  not  been  celebrated  till 
r  ^a  -\  after  the  alienation  of  the  husband,  recovered  *her  Dower 
■-  -■  upon  the  ground  that  the  alienation  of  the  land  by  the  hus- 

band in  the';  interval  between  a  sentence  of  the  ecclesiastical  court  for 
execution  of  the  contract,  and  the  celebration  of  matrimony  pursuant  to 

(e)  Swinb.  Spousals,  p.  9,  13,  15.  See  also  2  Salk.  437,  438;  6  Mod.  155;  and  the 
judgment  of  Sir  Wm.  Scott  in  Dalrymple  v.  Dalrymple,  reported  by  Dr.  Dodson,  1811.  8vo. 
p.  13. 

(/)  Tract.de  Repub.  Angl.  p.  103 ;  Swinb.  Spousals,  2,  15;  Perk.  sec.  306;  and  eee 
Moore,  170 ;  and  Dodson's  Report  of  the  judgment  of  Sir  W.  Scott  in  Dalrymple  v.  Dal- 
rymple, p.  18.  See  however  Perk.  sec.  306  ;  Fitzh.  N.  B. ;  Roll.  Ab.  "  Bar.  and  Feme."(A) 
pi.  21,  as  to  marriages  in  chambers,  and  chapels  unconsecrated. 


OP  MARRIAGE  WITH  REFERENCK  TO  DOWER.  5 

that  sentence,  was  a  fraudulent  alienation,  quoad  the  wife,  yet  this  re- 
covery was  reversed  coram  ref;c  ef  concilia,  because  neither  the  contract 
nor  the  sentence  was  a  marriaj^e  by  the  temporal  law,  and  so  the  husband 
had  no  seisin  during  his  marriage  with  the  demandant. f,^')  The  statute 
of  26  (jco.  II.  therefore,  commonly  called  the  Marriage  Act,  has  made 
no  material  alteration  in  the  law  so  far  as  relates  to  Dower,  by  taking 
away  the  force  of  contracts /jer  verhd  dc  prccsenti  am]/ufu7'o,  however 
widely  that  provision  may  have  broken  in  upon  the  doctrine  of  the 
ecclesiastical  courts  in  other  respects.  The  only  alterations  that  can  be 
stated  as  having  been  produced  by  that  clause,  as  to  the  title  of  Dower, 
are,  1st,  that,  before  the  statute,  a  woman  with  whom  a  contract  of  mat- 
rimony had  been  made,  per  verbd  de  prxsciiti  or  fiittiro,  had  the  pow- 
er of  compelling  the  execution  of  that  contract  in  the  ecclesiastical  court, 
and,  as  a  consequence,  of  entitling  herself  to  Dower;  while,  as  to  all 
cases  within  the  statute,  the  power  of  the  ecclesiastical  court  to  decree  a 
celebration  in  facie  ecclesiie  pursuant  to  the  contract  is  taken  away; 
and,  2dly,  that  no  marriage  is  now  void,  as  formerly,  by  reason  of  any 
such  precontract;  that  objection  to  the  validity  of  a  marriage  being 
impliedly  taken   "away  by  the  clause  of  the  marriage  act  in   ^     ,,  -, 

question. (A)     The  cases,  therefore,  put  in  the  old  books,  of  I-  ^ 

a  woman  being  barred  of  her  dower  by  reason  of  precontract,  are  now 
become  obsolete. (t) 

The  only  other  view  in  which  the  marriage  act  is  relevant  to  the  sub- 
ject of  this  treatise  is,  as  having  introduced  certain  additional  circum- 
stances, such  as  banns,  license,  consent,  &c.  as  requisites  to  the  validity  of 
marriages  as  to  all  cases  within  the  act,  and  as  having  declared  marriage 
not  accompanied  with  the  prescribed  formalities  to  be  actually  void,  and 
consequently  precluded  such  marriages  from  being  the  foundation  of  any 
claim,  to  the  validity  of  which  an  actual  legal  marriage,  and  not  merely 
a  marriage  in  reputation,  is  requisite.  And  in  t^c  construction  of  this 
statute  the  courts  have  decidedly  refused  to  put  that  interpretation  upon 
it  which  has  been  occasionally  adopted  when  the  law  makes  a  thing 
void  for  the  benefit  of  the  parties,  as  in  the  statute  of  apprenticeship, 
namely,  that  they  may  waive  that  advantage,  if  they  please;  but  the 
marriage  act  being  avowedly  made  against  both  the  contracting  parties, 
an  irregular  celebration  is  void  to  all  intents  and  purposes,  and  no  sub- 
sequent agreement  or  cohabitation  of  the  parties  can  give  effect  to  it.  (A') 

It  must  be  borne  in  mind  that  the  provisions  of  the  marriage  act  do  not 
extend   to   marriages  *between  Quakers  or   Jews,    nor  to  ^      ^ 
marriages  solemnized  beyond  the  seas,  or  in  Scotland. (/)       L        ^^     J 

It  is  the  peculiarity  under  which  claims  of  Dower  lie  at  this  day,  that 
the  existence  of  a  matrimonial  relation  as  one  of  the  circumstances,  the 
proof  of  which  may  be  involved  in  the  claim,  is  not,  as  in  other  cases 
where  it  is  incidentally  brought  in  issue  in  the  temporal  courts,  capable 
of  being  inquired  into  and  ascertained  in  those  courts.  The  rules  of 
evidence,  therefore,  which  have  been  adojjted  in  the  temporal  courts  in 
reference  to   questions  of  marriage,  are  no  further  applicable,  when  the 

ig)  Co.  Lilt.  33  a.  n.  (10).     Hal.  MSS. 

(A)  See  Hargr.  Co.  Lilt.  82  b.  note  (4). 

(t)   See  1  Bl.  Com.  435. 

\k)  Chinham  v.  Preslon,  1  Bl.  192 ;  Bull.  N.  P.  114. 

(0  Sect.  18. 

Vol.  XI.— 2  B 


6  PARK  ON  DOWER. 

question  arises  upon  a  claim  of  Dower,  than  as  those  rules  are  recogni- 
zed by  the  ecclesiastical  court,  to  which,  in  this  case,  the  question  is 
referred. 

This  peculiarity  arises  from  the  antiquity  of  the  action  in  which 
Dower  is  tried,  it  having  been  instituted  at  a  time  in  which  the  temporal 
courts  had  not  assumed,  to  the  extent  to  which  they  now  do  with  great 
convenience  to  the  suitor,  the  power  of  incidentally  inquiring  into  and 
determining  matters  upon  which  they  have  no  original  or  substantive 
jurisdiction.  By  the  ancient  rules  of  pleading,  it  was  prohibited  to  bring 
in  issue  to  the  country  a  question,  which,  like  that  of  the  legality  of  a 
marriage,  it  was  the  sole  and  exclusive  privilege  of  the  ecclesiastical 
*io  T  courts  to  decide;(w)  and  any  plea  *'or  replication  tending 
L  "     -'  to  that  effect,  was  treated  as  an  attempt  to  oust  the  bishop  of 

his  jurisdiction;  and  though  the  temporal  courts  are  now  considered  as 
having  the  inherent  power  of  deciding  incidentally,  cither  upon  the  fact 
or  legality  of  marriage,  where  they  lie  in  the  way  to  the  decision  of  the 
proper  objects  of  their  jurisdiction, (?z)  yet  in  the  cases  of  writs  of 
Dower  and  other  real  actions,  where  the  issue  is  upon  the  legality  of  the 
marriage, (o)  they  have  declined  departing,  except  in  cases  of  necessity, 
from  the  old  technical  rule,  which  propounds  the  mode  of  trying  the 
question  to  be  by  the  certificate  oX  the  ordinary.  The  only  exceptions 
to  this  arise  from  the  necessity  of  the  case;  as  of  a  marriage  in  a  foreign 
country,  or  in  Scotland,  where  there  is  no  episcopal  jurisdiction. (jo) 

These  exceptions  are  founded  not  on  the  inability  of  the  spiritual  court 
to  consider  and  decide  on  the  validity  of  such  a  marriage,  but  on  the 
ground  that  the  reference  to  the  bishop,  in  the  old  form  of  real  actions, 
is  not  supposed  to  be  for  the  assistance  of  his  opinion,  but  for  an  official 
certificate  of  the  fact  that  the  parties  are  lawfully  married,  from  the  per- 
son having  the  proper  local  jurisdiction  for  inquiring  into  and  ascertain- 
1  ing  it.  If  *this  is  not  the  reason  for  the  distinction,  it  is 
L  -J  difficult  to  apprehend  why  one  case  should  not  be  referred 

to  the  ecclesiastical  court  as  well  as  the  other. 

What  is  the  precise  evidence  admissible  in  the  bishop's  court,  for  the 
purpose  of  authorising  an  affirmative  certificate,  the  writer  has  not  been 
so  fortunate  as  to  satisfy  himself.  In  one  book  it  is  observed,  that  on 
the  inquisition  in  the  bishop's  court  the  party's  own  sole  confession, 
however  taken  upon  oath  either  within  or  without  the  court,  shall  not 
have  credit,  but  the  truth,  as  far  as  possible,  must  be  sifted  out  by  de- 
positions of  witnesses,  and  other  lawful  proofs  and  evidences.  In  cases 
within  the  marriage  act,  it  is  apprehended  that  compliance  with  all  the 
solemnities  of  that  act  must  be  proved. (y)     But  where  that  act  does  not 


(m)  The  right  of  Espousals  is  always  triable  by  the  bishop.  49  E.  2,  18  ;  39  E.  3.  26  ; 
39  Ass  pi.  8,  as  if  the  issue  be  whether  a  feme  be  accoupled  in  lawful  matrimony.  49  E.  3. 
18,  andnot />?r/»ats.  7  H.  4.  25  h.\  11  H.  4.  14  b.;  19  H.  6.  18;  39  E.  3.  26,  33;  50  E. 
3.  15 ;  49  Ass.  7.  See  also  Hard.  63  ;  1  Vent.  77  ;  1  Lev.  41  ;  1  Leon.  53. 

(n)  See  Skin.  455. 

(o)  On  the  issue  of  "  general  bastardy"  in  a  real  action,  where  the  imputed  bastard  is  a 
party  to  the  writ,  the  trial  is  the  same  as  on  the  issue  of  ne  unques  accouple  in  a  writ  of 
Dower.     See  12  Co.  67. 

(/j)  So  during  the  abolition  of  Episcopacy,  in  the  time  of  the  Commonwealth,  the  trial 
of  unqiies  accouple  in  loyal  matritnony  was  per  puis.     See  Hard.  65. 

{q)   See  Lord  Mansfield's  observation,  1  Bl.  367. 


OF   MARHIAdi:   WITH  REFERENCE  TO   DOWER.  7 

apply,  as  on  marriages  of  Jews  or  Quakers,  the  writer  has  not  been  able 
to  ascertain  wliclher  circumstantial  evidence  may  be  ailniittecl.(r) 

Nolwillislanilinj^  the  question  of  marriat^e,  when  arising  on  a  claim  of 
(lower  by  a  woman  married  in  IOni!;land,  is  triable  by  the  ecclesiastical 
court,  where  the  rif^Ut  and  not  merely  the  fad  of  the  marriage,  is  cog- 
nizable, yet  the  question  is  attended  with  a  circumstance  which  has  the 
effect  of  reducing  it  very  nearly  U)  a  question  of  fact;  namely,  that  it 
does  not  arise  till  after  the  dexitk  of  one  of  the  jjarties.  In  many  cases 
whei'e,  if  both  the  parties  *\vere  alive,  the  sjjiritual  court  ^  , 
must  certify  against  the  marriage,  as  null  l)y  the  ecclesiasti-  ^  ^ 

cal  law,  the  certificate  must,  after  the  death  of  either  of  them,  be  in 
favour  of  the  marriage,  on  the  ground,  that  though  voidable,  it  was 
never  annulled  by  sentence  of  the  spiritual  court  during  the  lifetime  of 
the  parties,  and  that  court,  which  acts  only  jno  salute  unimariim^  has, 
by  the  death  of  the  husband,  lost  its  Jurisdiction,  and  cannot  now  avoid 
the  marriage.  The  proposition,  therefore,  stateil  in  many  of  the  books, 
that,  for  the  purposes  of  Dower,  the  marriage  must  be  ilc  jure,  and  not 
de  facto,  though  true  to  some  extent,  is  more  calculated  to  mislead  the 
student  than  to  convey  any  correct  impression  to  his  mind.  It  would 
appear  to  be  in  cases  only  where  the  marriage  was  absolutely  void,  or 
where,  being  voidable,  it  was  annulled  by  sentence  in  the  spiritual  court 
in  the  lifetime  of  the  parties,  that  the  illegality  of  a  marriage  is  an  im- 
pediment to  a  claim  of  Dower.  It  is  accordingly  said  by  Lord  Coke  in 
his  Commentary  on  the  chapter  on  Dower,  "  Here  Littleton  speakcth  of 
a  wife  generally,  and  generally  is  to  be  understood  as  well  of  a  wife  de 
facto  as  dejure.'\s)  It  is  also  said  to  have  been  adjudged  that  the  wife 
of  a  priest  (before  the  Stat.  5  and  6  Ed.  VI.  c.  12,)  should  have  Dovver,(/) 
this  marriage  being  not  void  but  voidable,  and  in  the  modern  case  of 
Haydon  v.  Gould(?^)  it  seems  to  have  been  *the  impression  ^  ^ 
of  the  Court  of  Delegates  that  a  marriage  by  a  layman  would  L  J 

entitle  the  wife  to  a  temporal  right,  although  it  would  not  authorise  the 
ecclesiastical  court  to  grant  administration  of  the  wife's  effects  to  the 
husband. 

In  Jacob's  Law  I)ictionary(i')  it  is  remarked  that  "  marriages  by 
liomish  priests,  whose  orders  are  acknowledged  by  the  Church  of  Eng- 
land, are  deemed  to  have  the  efiects  of  a  legal  marriage  in  soyne  in- 
stances; but  marriages  ought  to  be  solemnized  according  to  the  rights  of 
the  Church  of  England  to  entitle  the  parties  to  the  privileges  attending 
legal  marriages,  as  Dower,  Thirds,"  icc.  This  is  true,  perhaps,  only  in 
tlie  sense,  that  such  marriages,  generally  speaking,  would  be  ro/o?  by  the 
marriage  act. 

Independent  of  the  statute  law  there  are  cases  in  which  a  contract  of 
marriage  is,  in  its  own  nature,  a  mere  nullity,  and  therefoie  does  not  re- 
(juire  a  sentence  of  the  ecclesiastical  court  to  avoid  it. 

(r)  It  seems  such  cviJencc  cannot  bo  received  when  lioth  the  parlies  are  living,  as  in  a 
suit  lor  jiictitntioii.     2  Lil.  879;  l)ut  sec  Wood.  Civ.  L.  V~l. 

(«)  Co.  Liu.  :J;J  b. 

(t)  Dyer,  185  a.  niarp;.;  and  see  Co.  Lilt    ^6  a. 

(h)  I  !Sall<.  119.  'J'iiis  case  was  licfore  llie  marriage  act.  Upon  the  circumstances,  the 
marriaf^e  would  proliaMy  now  l)o  held  void  liy  this  act,  as  not  lieing  solemnized  in  a  church 
or  chapel  within  the  meaning  ot  the  act. 

(t)  'J'it.  '  Marriage;'  and  sec  2  Hum's  Eccl.  Law,  473  ;  Kcx  v,  Fi.-lding,  5  St.  Tr.  610; 
Rex  V.  Inhabit,  of  Brampton,  10  East,  283,  2S8. 


O  PARK  ON  DOWER. 

The  case  of  bigamy,  in  particular,  is  an  example  of  this:  "  If  a  man 
seised  of  land,  tenement,  or  rent,  &c.  in  fee,  take  a  wife,  and  during  the 
same  marriage  he  marrieth  another  wife,  and  the  husband  die,  leaving 
both  wives,  the  latter  wife  shall  not  have  dower;  because  the  marriage 
between  them  was  void.  And  if  a  woman  take  a  husband,  and  living 
the  same  husband,  she  marrieth  another  husband,  who  is  seised  of  land 
^.  -  -,  in  fee,  and  the  second  *husband  die,  she  shall  not  have  Dower 
L  ^  of  his  land,  causa  patetJ\w)     The  principle  of  this  case  is 

the  positive  legal  disability  of  a  person  already  married,  to  contract  mar- 
riage with  any  other  during  the  continuance  of  the  prior  relation. 

It  appears  also  that  the  absence  of  consent  on  the  part  of  either  the 
husband  or  wife,  renders  a  marriage  merely  void  by  the  common  law  as 
well  as  by  the  spiritual  law:  as  where  a  man  marries  a  woman  by  force 
and  duress, (a?) 

It  was  formerly  held,  that  the  wife  of  an  idiot  should  be  endov/ed,(y 
but  Sir  W.  Blackstone(2)  is  of  opinion,  that  the  law  would  be  otherwise 
now,  on  the  ground  of  the  decision  in  Morrison's  case,[a)  that  an  idiot, 
being  incapable  of  consent,  cannot  contract  marriage. 

Marriages  of  persons  found  lunatics  by  inquisition  are  declared  void 
to  all  intents  and  purposes,  by  the  statute  law.  (6)  It  was  however 
doubted,  in  ex  parte  'Turing, (c)  whether  it  was  not  necessary  to  have  a 
^  ^.-  -1  ^sentence  of  the  Ecclesiastical  Court,  declaring  the  marriage 
L  J  void;    and  Lord  Eldon  mentioned,  that  under  the  Royal 

Marriage  aci,{d)  declaring  certain  marriages  void,  a  sentence  has  been 
thought  necessary,  though  he  did  not  know  upon  what  ground  that 
opinion  proceeded.  The  case  was  referred  to  the  Master,  but  it  does 
not  appear  what  was  the  result  of  the  inquiry. 

It  is  difficult  to  understand  how  the  express  words  of  the  statute  can 
be  neutralised. (e) 

It  is  to  be  mentioned,  as  an  exception  to  the  nullity  of  marriages  aris- 
ing ^rom  positive  disability  to  contract  matrimony,  that  ybr  the  pur- 
poses of  Dower,  and  with  the  modern  qualifications  arising  from  the 
Marriage  act,  as  to  cases  within  that  act,  a  marriage  may  be  good  al- 
though contracted  before  the  age  of  consent,  and  although  the  husband 
dies  without  having  arrived  at  that  age.  Tiiis  anomalous  doctrine  owes 
its  existence  to  the  privileged  character  of  Dower.     "Therefore,  if  the 


(w)  Perk,  sec.  304,  305  (cites  T.  39,  E.  3.  15).  See  also  1  Salk.  120  ;  Cro.  Eliz.  858  ; 
Roll.  Abr.  '  Bar.  and  Feme'  (A)  pi.  2.  But,  it  seems,  the  tenant  in  the  writ  of  Dower  can- 
not jo/ea  J  bigamy,  but  must  give  it  in  evidence  before  the  bishop,  on  the  general  issue  of 
ne  ungues  accouple,  &c.     Bro.  Dow.  pi.  54,  (cites  39  E.  3.  15). 

(ar)  Roll.  Abr.  « Bar.  and  Feme'  (A)  pi.  5.  (cites  11  H.  4.  14,  Dubitatur.  19  H.  7.)  And 
see  2  Inst.  687  ;  Kelw.  32,  52. 

{ij)  Co.  Litt.  30.  b.  80.  a.  note.  3  Bac.  Abr.  533 ;  and  see  Roll.  Abr.  '  Bastard.'  (A)  pi. 
7 ;  '  Baron  and  Feme'  (A)  pi.  8  ;  Sid.  1 12. 

(2)  2  Com.  130. 

(a)  Suppl.  to  1  Com.  8. 

lb)   15  Geo.  2.  c.  30 ;  Co.  Litt.  80.  a.  note. 

(c)   1  Ves.  and  Bea.  140. 

\d)   12  Geo.  3.  c.  11. 

(e)  In  BuUer's  Nisi  Prius,  p.  114,  a  MS.  case  of  Rex  v.  Preston  next  Travasham  M.  33 
Geo.  2.  B.  R.  is  mentioned,  in  which  it  was  expressly  held,  that  where  the  evidence  is  clear 
that  a  marriage  was  not  celebrated  according  to  the  requisitions  of  the  marriage  act,  it  is  to- 
tally void,  and  no  declaratory  sentence  in  the  ecclesiastical  court  is  necessary.  This  is  un- 
doubted law. 


OF  MARRIAGE  WITH  REFERENCE  TO  DOWER.  9 

Wife  be  past  the  age  of  nine  years  (says  Lord  Coke,)  at  the  time  of  the 
death  ol  her  husbaiul,  she  sliall  be  endowed,  of  what  age  soever  her  hus- 
band be,  albeit  lie  were  but  four  years  old.(/)  Quia jvninr  non potest 
dotcm  pro)iioreri,  *neque  viriim  suslinerc;  nee  obstahit  r  n  o 
muiieri  pctcnti  minor  sntas  viri.  Wherein  it  is  to  be  L  ^^  J 
observed,  that  albeit  Consensus  non  concnbilus  facit  matrimonium^ 
and  tiiat  a  woman  cannot  consent  before  twelve,  nor  a  man  before  four- 
teen, yet  this  inchoate  and  imperfect  marriage  (from  the  which  either  of 
the  parties  of  the  age  of  consent  may  disagree,)  after  the  death  of  the 
husband  shall  give  dower  to  the  wife,  and  therefore  it  is  accounted  in  law 
after  the  death  of  the  husband  legitimum  matrimonium,  a  lawful  mar- 
riage, quoad  dotem.^\g) 

*Lord  Coke  also  adds,  "  If  a  man  takcth  a  wife  of  the  age  ^  ^ 
of  seven  years,  and  after  alien  his  land,  and  after  the  aliena-  L  ^^  J 
tion  the  wife  attaincth  to  the  age  of  nine  years,  and  after  the  husband 
dieth,  the  wife  shall  be  endowed,  for  albeit  she  was  not  absolutely  dowa- 
ble  at  the  time  of  the  marriage,  yet  slie  was  conditionally  dowable;  viz. 
if  she  attained  to  the  age  of  nine  years  before  the  death  of  the  husband, 
&c.  for  by  his  death  the  possibility  of  Dower  is  consummate."(A) 

The  effect  of  a  sentence  in  the  ecclesiastical  court,  annul/ifig  a  mar- 
riage by  reason  of  canonical  impediment,  as  consanguinity,  aflinitv,  fri- 
gidity, &c.  is  to  make  that  marriage  void  ab  initio,{i)  and  consequently 
to  j)ut  an  end  to  the  title  of  J)ower."(A') 

(/)  Hut,  SCO  Bro.  Dow.  pi.  88,  where  it  is  said,  that  if  the  feme  is  of  the  age  of  nin(^ 
years,  and  the  baron  is  not  of  seven  years,  she  shall  not  have  Dower.  Contra,  if  he  is  of 
seven  at  the  lime  of  his  death.     See,  however,  Dr.  and  Stud.  Dial.  1.  ch.  vii. 

{g)  Co.  Liu.  33.  «.  and  see  2  Inst.  234  ;  Litt.  sec.  36  ;  Bro,  Dow.  pi.  36,  45  ;  Fitzh.  N. 
_.  149.  (L);  1  Leon.  54;  Dy.  369;  Dr.  and  Stud.  Dial.  1.  chap.  vii.  2  P.  W.  704. 

A  dilFiculty  seems  formerly  to  have  been  entertained  how  the  bishop  would  certify  this  to 
the  court  as  a  legal  marriage,  which  by  the  rules  of  the  ecclesiastical  law  was  but  spousalia 
tie  futuro. 

In  a  cise  in  Dyer  (13  and  14  Eiiz.)  f.  305.  b.  the  bishop  certified  to  the  writ,  that  the  hus- 
band of  the  demandant  at  about  the  age  of  twelve  years,  and  the   demandant  at  the  a-'e  of 
ei-xteen  ytars,  contracted  matrimony  per  verba  tie  pntHeuti,  and   procured  it   to  be  lawlullv 
solemnized  in  the  face  of  the  church  at  B.  <Sfc.      The  court  not  holding  this  a  suflltient  cer- 
tificate, inasmuch  as  it  did  not  certify  the  IrgaUlij  of  the  marriage,  directed  a  writ  de  mc'.his 
eertiorando,  whereon  the  bishop  answered,  that' the  age  of  the  husband  »vas  eleven  years, 
ten  months,  and  twenty  days,  at  the  lime  of  the  espousals  solemnised,  assuming  to  lay  the 
insufliciency  of  the  certificate  on  the  uncertainty   of  the  words  '■'■about  the  age  of  twelve 
years."     The  court  appears  to  have  treated  this  as  a  mere  evasion,  for  they  fined  the  bishop 
twenty   pounds.     In  a  subsequent  term,  the    bishop  made  a  fresh   certificate,  that  Thomas 
Gray,  of  the  age  of  eleven  years,  ten  months,  and  twenty  days,  and  Elizabeth,  of  the  age  of 
si.xteen  years,  being  respectively  free  and  exempt  from  all  ma'trimonial  contract  or  espousals, 
contracted  matrimony  ;;er  verba  de pi:,'Hinit  ,  and  in  the  face  of  the  church  at  B.  &c.  on  such 
a  day,  lawfully  solemnized  it  between    liiem  ;   and  so    ircre  coup/cd  in  /,o/i/   matrimonv. 
After  many  arguments  upon  the  .'suniciciicy  of  ihis  return,  and  a  reference  to  the  doctor's' 
who  were  of  opinion,  that  it  was  repugnant  in  itself,  and  insulHcicnt.  this  certificate  was  also' 
rejected.    Dy.  313.  b.     The  .successor  of  the  bishop  afterwards   made  a  fresh  return  upon  a 
new  writ,  staling,  that  he  had  found  upon    inquiry,  that  Elizabeth  and  'J'homas  Grav  were 
joined  in  bnrfid  miitrimonu;  the  doctors  being  of  opinion  on  a  case  propounded  to  them    that 
the  ordinary  ought  so  to  certify  it,  as  the  case  was  put  touching  Dower,  although  oiher'wise 
they  were  sponsalia  de  futuro  [l)y  reason  of  the  nonage,]  yet,  in  a  cause  of  Dower,  they  should 
be  extended  to  be  true   matrimony,  jvino/ie  pr.vtlcgii.   Dy.  3(;y.  n.     This   appears  to  have 
been  one  of  the  struggles  formerly  so  frequent  between  the  temporal  and  ecclesiaslieal  courts 
The  author's  reason  for  stating'  it  hero  is  on  accnunt  of  the  princijile  which  it  furniiihes. 

(A)   Co.  Litt.  33.  a.     But  see  13  Co.  20,  contra  arguendo. 

(i)  See  AuRhtiev.  Auchtie,  1  Phillimorc's  Reports,  203. 

Ik)  7  Co.  140.    KoU.  Abr.  Dow.  (K)  pi.  1—5.    1  Co.  Litt.  32.  a.  33. 


B 


b.     And  sec  Jenk. 
2   B   2 


10  PARK  ON  DOWER. 

*on     1       *But  these  sentences  of  Divorce,  as  they  are  frequently, 
I  J  though  somewhat  incorrectly  termed, (/)  must  be  carefully 

distinguished  from  Divorces  properly  so  called,  namely,  Divorces  ct 
mensa  et  thoro,  in  which  the  marriage  still  continues  in  full  force,  and 
the  title  of  Dower  is  consequently  unaffected.(m) 

It  should  also  be  noticed,  that  a  divorce  a  mensa  et  thoro,  will  be  no 
bar  to  dower,  although  there  was  cause  to  annul  the  marriage,  as  for 
consanguinity,  {n) 

*oi      1       *And,  as  has  been  already  intimated,  in  all  cases  oi  void' 
^  J  able  marriages,  if  the  husband  dies  before  the  sentence  of 

the  ecclesiastical  court  annulling  the  marriage  is  pronounced,  the  wife 
de  facto  will  be  entitled  to  Dower,  for  the  marriage  being  only  voida- 
ble, and  not  actually  avoided  by  sentence  in  the  lifetime  of  both  the  par- 
ties, it  cannot,  for  the  reason  already  mentioned,  be  avoided  after- 
wards;(o)  and  consequently,  the  Bishop  must  certify  that  the  parties 
were  lawfully  married,(j9)  if  the  tenant  in  a  writ  of  Dower  plead  ne 
ungues  accouple. 

In  the  cases  of  marriages  in  foreign  countries,  it  appears  to  be  adopted 
by  the  courts  as  a  general  principle,  that,  if  solemnized  according  to  the 
laws  of  the  country  where  contracted,  they  shall  be  acknowledged  here 
as  legal  marriages;((7)  and  it  was  admitted  by  Lord  Hardwicke  in 
Roach  v.  Garvan,(r)  that  the  sentence  of  a  foreign  court,  having  pro- 
per jurisdiction,  is  conclusive  evidence  of  marriage,  from  the  law  of 
nations  in  such  cases;  as  otherwise  the  rights  of  mankind  would  be  very 
r  Qo  ^  precarious  and  uncertain.  The  same  doctrine  has  *been 
\-       """      ^   laid  down  by  Lord  Mansfield,  in  Robinson  v.  Bland. (5) 

But  reasonable  evidence  of  the  celebration  of  the  marriage,  although 
without  sentence,  would,  it  is  apprehended,  be  sufficient,  even  in  the 


44,  where  it  is  said,  that  "  where  the  cognizance  of  a  cause  belongs  to  the  Spiritual  Court 
and  they  give  sentence  in  it,  and  express  the  cause  of  their  sentence,  although  this  cause  of 
sentence  be  null  and  void  in  our  law,  yet,  our  law  approves  of  the  sentence."  See  also  7 
Co.  140. 

(/)  The  common  distinction  is  between  sentences  of  Divorce  a  vinculo  matrimonii,  and 
sentences  of  divorce  a  mensa  et  thoro. 

(m)  Co.  Litt.  32.  a.  33.  b.  235.  a.  18  E.  4.  29 ;  10  E.  3.  15.  Dame  Powell  v.  Weeks, 
Noy,  108.  Lady  Stowel's  case,  Godb.  145  ;  2  Inst.  435  ;  2  Leon.  171,  (cites  U  H.  7.  27;) 
7  Co.  140.  In  Roll.  Abr.  680,  pi.  13,  it  is  said,  that  "if  the  wife  be  divorced  for  adultery, 
(which  does  not  dissolve  the  bond  of  marriage  by  the  canon  law,  nor  of  our  church  in  this 
realm,  but  is  only  a  mensa  et  thoro,)  yet,  this  shall  bar  her  of  her  Dower."  But,  no  case  is 
cited  for  this,  and  the  authorities  are  uniformly  contrary.  But  see  {7ifra,  chap.  ix.  that  adul- 
tery and  elopement,  in  conjunction,  are  a  forfeiture  of  Dower;  and  it  is  observable  that  the 
passage  in  RoUe  is  under  the  head  "  Elopement." 

It  is  stated  in  some  of  the  treatises  upon  the  authority  of  Shute  v.  Shute,  Prec.  in  Chan. 
Ill,  that  a  court  of  equity  will  not  assist  a  widow  in  recovering  her  Dower,  who  has  been 
divorced  for  adultery.  But  a  careful  perusal  of  that  case  will  show  that  it  was  merely  deter- 
mined upon  the  old  rule,  that  where  there  is  no  impediment  at  law,  a  court  of  equity  will 
not  entertain  a  bill  for  Dower.  See  chap.  xiii.  infra.  See  aloo  Seagrave  v.  Seagrave,  13  Ves. 
439,  that  adultery  is  not  a  bar  to  equitable  relief. 

(71)   Rennington  v.  Whithipole,  Hob.  181,  cited  Vaugh.  249,  322. 

(0)  7  Co.  142.  Harris  v  Hicks,  2  Salk.  548.  Pride  v.  Earl  of  Bath,  1  Salk.  120;  4 
Mod.  182;  Carth.  271  ;  and  see  1  Ves.  S.  245.     Rennington  v.  Cole,  Noy,  29. 

(/>)  Co.  Litt.  33.  a.  (cites  10  E.  3.  35  ;  Fleta,  1.  5,  c.  22 ;  Brit.  c.  107;)  Perk.  sec.  305. 

\q)  See  2  Burr.  1079  ;  2  Eq.  Ab.  411;  10  East,  386,  (where  see  as  to  marriages  in  Am- 
bassadors' chapels;)  Judgment  in  Dalrymple  v.  Dalrymple,  p.  6. 

(r)  1  Ves.  S.  159. 

(s)   1  Bl.  259. 


OF  THE  RULE  REQUIRING  A  SEISIN.  11 

case  of  Dower,  where  no  circumstances  appear  to  induce  doubts  whetlier 
the  laws  of  the  country  were  conij)lied  with.(/) 

Doubts  have  been  formerly  entertained  of  the  validity  of  marriages 
celebrated  in  Scotland,  accordint:;  to  the  laws  of  that  country,  between 
persons  who  went  there  from  Kngland  to  evade  the  provisions  of  the 
marri:ii;e  act,  in  consequence  of  Scotland  having  been  expressly  ex- 
cepted out  of  that  act.  These  doubts  arose  on  the  cases  of  marriages  of 
minors  without  the  consent  of  parents  or  guardians,  and  without 
banns,  which  were  declared  void,  as  clandestine  marriages,  by  the  26 
Geo.  II.  c.  33. 

In  Ilderton  v.  Ilderton,(w)  it  is  reported  to  have  been  admitted  by 
the  bar,  and  assented  to  by  the  bench,  that  a  marriage  celebrated  in 
Scotland  was  such  a  marriage  as  would  entitle  a  woman  to  Dower  in 
England.  The  reporter  adds,  "  but  this  case  is  quite  clear  of  the  ques- 
tion whether  marriages  celebrated  in  Scotland  between  per-  ^  ^^ 
sons  who  ^0  thither  "^to  ciuule  the  laics  of  England,  be  L  ^  J 
valid  in  England;  and  in  liobinson  v.  Iilan(l,(y)  Lord  Mansfield  ex- 
pressed a  doubt,  whether  the  lex  loci  ought  to  be  applied  to  cases  ac- 
companied with  circumstances  so  strongly  marking  the  intent  to  evade 
the  law  of  England.  In  a  subsequent  case,  however,  where  the  par- 
ties, both  English  subjects,  eloped  to  Scotland,  and  were  married,  the  wife 
being  under  age,  and  without  the  consent  of  her  guardian,  it  was  deter- 
mined in  the  Court  of  Arches,  and  afterwards  nlhrmcd  on  appeal  to  the 
Court  of  Delegates,  that  such  marriage  was  valid. Ct^;) 


•CHAPTER   III.  [     *24     ] 

Of  the  a])pHcation  of  the  Rule  requiring  a  seisin  in  the   husband 
during  the  Coverture,  in  order  to  the  attachment  of  a  title  of 

DOWER. 

The  second  circumstance  essential  to  a  title  of  Dower,  is  a  Seisin  of 
lands  or  tenements,  at  some  time  during  the  coverture, (a)  in  the  person 
who  fulfils,  or  has  fulfilled  the  character  of  husband  to  the  woman  lay- 
ing claim  to  that  title.  The  rule  requiring  a  seisin,  taken  loosely,  is  al- 
most too  obvious  to  require  propounding;  since,  in  the  nature  of  things 
a  title  to  dower  can  necessarily  arise  no  otherwise  than  in  respect  of  such 
lands  or  tenements  of  which  the  husband  was  seised;  and  the  addition- 
al term  of  the  rule,  that  the  seisin  shall  be  during  the  coverture,  car- 
ries an  evident  propriety  and  convenience  on  the  face  of  it,  as  it  would 
be  absurd  that  a  title  commencing  with  the  marriage  contract,  should 

(t)  In  questions  of  bastardy  it  is  clearly  so.  Sec  Aisop  v.  Bowtrcll,  Cro.  Jac.  542;  where 
a  certificate  under  the  seal  of  the  minister  of  the  town,  and  evidcnre  of  cohabitation  as  man 
and  wife  for  two  years,  was  received  as  suflicicnt  proof  o^  u  marriage  at  Utrecht. 

(m)  2  H.  lil.  145. 

Iv)  2  Hurr.  1080.  1  Bl.  259. 

(w)Comiiton  v.  Boarcroft,  1  Dec.  17GS;  Bull.  i\.  P.  113.  Hargr.  Co.  Litt.  7'.l.  l>.  n. ;  2 
Burr.  1080.  n.  and  see  also  Ex  parte  Hall,  1  Vcs.  and  Bca.  1 12;  and  Sir  W.  Scott's  Judg- 
ment in  Dalryraple  v.  Dalrymplc,  p.  52. 

(a)  Litt.  sec.  30  ;  Perk.  sec.  301  ;  Filzh.  N.  D.  147  (EJ;  Co.  Lilt.  31.  a. 


12  PARK  ON  DOWER. 

relate  back  to  all  property  of  which  the  husband  had  at  any  period  of 

his  life-time  been  seised,  and  his  seisin  of  which  was  previously  deter- 
mined. But  the  rule  is  principally  propounded  here  as  affording  the 
material  inference  that  a  right  or  title  to  real  property,  however  com- 
f  ^QK  1  P^ete  in  other  respects,  will  never  furnish  a  foundation  for 
L  -^^  J  a  claim  of  *dovver,  if  unaccompanied  with  that  which  is 
technically  termed  a  seisin. (6)  It  is  therefore  remarked  by  Perkins,(c) 
that  the  husband  "  may  prejudice  his  wife  in  her  title  of  dower  by  his 
laches  of  entry,  his  laches  of  suit,  or  his  laches  of  pleading,"  as  in  the 
cases  which  he  puts  immediately  after: — "If  a  man  seised  of  one  acre  in 
fee  be  disseised  of  the  same  acre,  and  taketh  a  wife,  and  dieth  before  his 
entry;"(rf)  or,  "  if  a  man  dieth  seised  in  fee,  and  a  stranger  doth  abate 
in  the  same  land,  and  after  the  abatement,  the  heir  marrieth  a  wife,  and 
dieth  before  his  entry."(e) 

Upon  the  same  principle,  if  a  man  grants  an  estate  upon  condition  on 
the  part  of  the  grantee,  and  afterwards  marries,  although  the  condition 
is  broken  in  his  life-time,  yet,  as  a  condition  annexed  to  an  estate  of 
free-hold,  will  not  revest  the  estate  in  the  grantor  without  entry  or 
claim,  if  he  neglects  to  take  advantage  of  the  breach,  his  wife  will  not 
be  dowable,  for  he  had  no  more  than  a  right  or  title  of  entry  for  condi- 
tion hi'oken.f/J 

The  cases  put  all  suppose  the  seisin  to  have  formerly  been  in  the 
^  -,  husband,  and  therefore  it  is  *material  to  their  accuracy,  that 

'-  ^  the  marriage  should  be  noticed  as  taking  place  subsequent 

to  the  determination  of  that  seisin,  for,  as  will  be  gathered  from  another 
part  of  the  treatise,  a  title  of  Dower  will  exist  in  the  cases  put,  although, 
during  the  converture,  the  Seisin  of  the  husband  is  converted  into  a 
right.  But,  supposing  the  right  to  descend  to  the  husband,  it  is  of 
course  immaterial  at  what  time  the  marriage  takes  place.  Till  the 
right  is  prosecuted  to  a  seisin,  no  title  of  Dower  can  arise. 

h  is  also  to  be  observed,  that  the  prosecution  of  a  right  or  title,  even 
to  judgment,  is  not  sufficient  if  the  husband  dies  before  entry,  or  execu- 
tion served;  for  the  judgment  alone  cannot  confer  a  seisin.  (5-)  And  it 
is  material  that  this  point  applies  not  only  to  recoveries  on  adverse 
suits,  but  also  to  common  or  feigned  recoveries.  Until  the  return  of 
the  writ  of  execution,  or  at  least  till  seisin  is  delivered,  no  seisin  is  in 
the  recoveror,  and  consequently  no  use  can  arise.(/i) 

And  although,  if  execution  is  afterwards  sued  by  the  heir,  the  execu- 
tion, when  served,  shall  have  relation  to  the  act  of  the  ancestor,  and  the 
heir  be  in  by  descent,(/)  yet,  according  to  the  old  books,  this  fictitious 


(6)  Mr.  Watkins  (Essay  on  Descents,  p.  51,)  has  pointed^out  an  error  in  Wood's  Insti- 
tutes, b.  2.  ch.  1.  sec.  5,  where  it  is  said,  that  the  widow  shall  be  endowed  when  the  husband 
has  only  a  right:  hut,  it  is  clear  from  the  context  of  the  passage,  that  nothing  more  was  in- 
tended than  to  distinguish  between  a  seisin  in  deed,  and  a  seisin  in  law. 

(c)   Sect.  366. 

(</)  lb.  (cites  E.  1  H.  7.  17 ;)  and  see  2  Co.  59  ;  Co.  Litt.  222,  a. 

(e)  Perk.  sec.  367,  (cites  E.  21,  E.  4.  60,)  and  see  sec.  374 

(/)  Perk.  sec.  368  ;  6  Co.  34.  b  ;  but,  see  the  distinctions  as  to  the  necessity  of  entry  or 
claim,  Co.  Litt.  218.  a. 

(g)  Plow.  43  ;  Perk.  sec.  370,  375. 

(A)  Jenk.  249.  ca.  40.  pi.  4  ;  Witham  v.  Lewis,  1  "Wils,  55 ;  Shelly's  case,  Sir  W,  Joues. 
10  Moor.  141  ;  and  see  4  Bro.  P.  C.  510,  I  Prest.  Conv.  149. 

(t)  Shelly's  cascj  ut  supra  ;  Jenk.  249  ;  Co.  Litt.  361.  6, 


OF  THE  RULE  REQUIRING  A  SEISIN.  13 

seisin,  or  seisin  by  relation,  being;  admitted  for  purposes  of  tenure  only, 
will  not  extend  to  confer  on  the  ancestor  the  incidents  of  an  actual 
*seisin,  or  entitle  his  wife  to  Dower.  The  fullowin^  case  ^  ,^,_  •, 
put  by  Perkins  exemplifies  this  position:  L       ''        J 

"If  there  be  husband  and  wife,  and  the  husband  is  seised  of  one  acre 
of  land  by  wrong  title,  and  is  impleaded  of  the  same  acre  by  him  that 
hath  riffht,  who  [viz.  the  husband],  voucheth  a  stranger  to  warranty, 
who  entereth  into  the  warranty  and  loselh,  and  each  of  them  halh  judg- 
ment for  to  recover  against  the  othei',(A')  and  the  demandant  enteretli, 
and  the  husband  dieth  before  execution  sued  against  the  vouchee,  his 
wife  shall  not  have  ])ower  of  this  land,  notwithstanding  the  heir  of  the 
husband  sue  for  the  execution,  and  this  land  cometh  in  lieu  of  the  land 
which  the  husband  was  seised  of  during  the  marriage  betwixt  him  and 
his  wife."(/) 

This  point  may  be  material  where  lands  are  purchased  from  a  tenant 
in  tail,  and  the  purchaser  dies  before  the  recovery  is  completed  by  de- 
livery of  seisin,  or  where  a  tenant  in  special  tail  has  p  wife  not  dowable 
of  that  entail,  and  suflers  a  recovery  to  his  own  use. 

A  case  stated  by  J}rooke(m)  to  the  following  effect,  seems  referrible 
to  the  same  principle.  Lands  were  given  to  the  father  of  the  husband 
in  tail;  he  died,  and  the  husband  enfeoffed  a  stranger,  who  regave  to  the 
husband  and  his  first  wife  in  tail  special.  They  had  issue  the  tenant, 
against  wiiom  a  second  wife,  brought  a  writ  of  Dower,  on  the  ground 
tiiat  the  *tenant  was  remitted  to  the  estate  tail  general.  This  p  ^^e  i 
claim  must  have  assumed,  that  the  tenant,  being  remitted  \.o  ^  -' 

the  tail,  general,  and  taking  that  estate  by  descent,  it  must  be  intended 
that  the  husband,  by  relation  of  law,  was  seised  of  that  estate,  and  not  of 
the  tail  special,  which  was  defeated  by  the  remitter. (n)  But,  the  book 
adds,  that  inasmuch  as  the  husband  during  the  coverture  had  nothing 
but  by  the  second  tail,  whereof  the  demandant  was  not  dowable,  the 
opinion  of  the  court  was  against  her. 

Following  apparently  the  same  jjrincijde,  that  a  seisin  by  relation  is 
a  seisin  for  the  purposes  of  title  only,  it  has  been  laid  down  by  Chief 
Baron  Gilbert,  that  "if  lands  are  bargained  and  sold,  and  the  bargainee 
dies  before  enrolment,  his  wife  shall  not  be  endowed;  for,  the  right  of 
Dower  is,  according  to  the  rules  of  common  law,  consummate  by  the 
death  of  the  husband;  and,  at  the  death  of  the  husband,  the  bargain  and 
sale  had  no  effect  to  vest  the  lands  in  him;  and  though  the  freeiiold,  after 
enrolment,  has  a  retrospect  to  the  date  of  tlie  deed,  yet  there  cannot 
thereby  arise  to  the  loifc  a  nexo  title  of  Dower,  contrary  to  the  rule  of 
common  law,  without  an  express  provision  by  the  statute. "(o)  On  the 
other  hand,  the  point  is  stated  by  tlic  same  author  in  a  subsequent  page, 
to  tiie  reverse  of  this  ^conclusion.  He  remarks,  that  "if  ^  t^^c^  -\ 
the  estate  shall  be  said  to  pass  as  to  strangers,  ab  initio  [by  '  -J 

(A-)  The  sense  must  be  that  the  dcmamlant  liath  juiltjment  lo  recover  against  the  tenant, 
and  llic  tenant  to  recover  over  in  value  against  the  vouchee. 

(/)   Perk.  sec.  376. 

(m)  Bro.  Dow.  pi.  18,  (cites 46  E.  3,  24,)  and  see  ibid.  pi.  9. 

(n)  Hut  see  pi.  9,  where  the  plea  of  the  wife  seems  to  have  been  that  the  issue  by  the  re- 
mitter was  esto/if)eil  to  say  that  her  barun  was  not  seised  of  the  estate  which  the  issue  had. 

(o)  Gilb.  Uses,  96;  see  also  Shep.  T.  220,  where  the  point  is  said  to  have  been  so  held 
in  Sir  Robert  Barker's  case,  in  6  Jac.  8ee  Dimmock's  case,  Owen.  149,  where  the  same 
point  was  agreed  by  all  the  justices  in  tiie  Court  of  Wards. 


14  PARK  ON  DOWER. 

relation],  for  their  disadvantage,  it  shall  pass  for  their  advantage.  And 
therefore,  if  a  bargain  and  sale  be  made  to  a  man,  and  he  dies,  and  then 
the  deed  is  enrolled,  it  seems,  his  wife  ought  to  be  endowed.''  fpj  So 
it  is  also  said  in  Cro.  Car.  217,  to  have  been  resolved  for  the  wife  of 
Baron  Frevill,  The  latter  opinion  is  contended  for  by  the  learned 
editor  of  Gilbert  on  Uses:  who  observes,  that  "  if  it  be  once  admitted, 
that  after  enrolment,  the  fee  is  in  the  bargainee  by  relation,  all  the  con- 
sequences of  a  seisin  in  fee  from  the  date  of  the  deed  must  follow" — 
"  Therefore,  his  wife  must  be  dovvable,  &c."(5')  It  deserves  considera- 
tion, however,  whether  the  cases  already  stated,  and  others  of  the  same 
description  to  be  met  with  in  the  old  books,  do  not  fully  establish  the  posi- 
tion, that  there  may  be  a  seisin  by  relation  for  some  purposes,  and  not 
for  all,  and  sanction  the  denial  of  Dower  to  the  wife  of  a  bargainee,  who 
dies  before  enrolment.  It  must,  notwithstanding,  be  admitted,  that  the 
distinction  do?s  not  appear  to  have  been  recognised,  as  to  Freebench,  in 
a  case  where,  if  tenable,  it  would  certainly  have  decided  the  question. 
In  the  modern  case  of  Vaughan  v.  Atkins,(r)  the  court  of  King's  Bench 
were  of  opinion,  after  long  argument,  that  the  admittance  of  the  heir  of 
a  surrenderee  of  customary  freehold  would  have  such  relation  to  the 
surrender  as  to  make  the  widow  of  the  surrenderee  entitled  to  free- 
P  ^„  -,  bench;  and,  although  *the  attention  of  the  court  was  called 
*-  -^  in  that  very  case  to  the  decision  respecting  bargains  and 

sales  which  has  just  been  adverted  to.  It  was  remarked  by  Lord  Mans- 
field, that  "the  vendor,  his  widow,  and  his  heir,  and  all  claiming  under 
him,  are  concluded  from  saying,  after  admittance,  that  the  land  did  not 
pass yrom  the  day  of  the  surrender.  Upon  that  ground,  the  lessor  of 
the  plaintiff  claimed  the  inheritance  whereof  his  brother  (the  surren- 
deree), died  seised;  and,  it  should  not  be  in  his  mouth  to  say,  against 
the  widow,  that  his  brother  did  not  die  seised. "(.s)  His  Lordship, 
therefore,  seems  to  have  denied  that  there  may  be  a  seisin  by  relation  for 
some  purposes,  and  not  for  otiier  purposes;  a  position  which  it  would 
be  difficult  to  reconcile  with  many  cases  in  the  old  books.  The  argu- 
ment of  the  Chief  Justice  would  just  as  well  prove  that  the  wife  of  a 
recoveror,  who  dies  before  execution  served,  may,  after  the  recovery  is 
executed  to  the  heir,  claim  her  Dower.  Until  the  law  on  this  head 
shall  be  fully  reconsidered,  it  would  seem  hardl)'^  prudent  for  the  prac- 
titioner to  treat  a  title  so  circumstanced  otherwise  than  as  subject  to  the 
attachment  of  Dower,  whether  in  the  wife  of  a  bargainee,  recoveror,  or 
other  person,  whose  heir  shall  acquire  a  title  by  descent  from  him,  by 
relation  of  law. 

In  a  subsequent  part  of  this  chapter,  it  will  be  noticed,  that  there  are 
cases  in  which  ajomt  seisin  (of  which  a  woman  is  not  dovvable),  may, 
after  the  death  of  the  husband,  become  a  sole  seisin,  by  relaiioji,  and 
•  #qi  -I  *that  in  those  cases  it  has  been  held  that  the  wife  is 
*-  ^  dowable. 

In  the  application  of  the  rule  requiring  a  seisin  in  the  husband,  it  is 
material  that  the  law  does  not  require  an  actual  seisin,  or  seisin  in  deed, 
but  that  it  is  sufficient  to  satisfy  the  rule  that  the  husband  have  a  seisin 
in  law.[t) 

(p)   Gilb.  Uses,  292.  (r)  5  Burr.  2765. 

Iq)    lb.  by  Sugden.  213,  n.  (s)  lb.  p.  2787. 

It)  Co.  Litt.  31.  a.;  Liu.  sec.  448  ;  Perk.  sec.  304,  370 ;  Sir  W.  Jones,  361. 


OF  THE  RULE  REQUIRING  A  SEISIN.  15 

In  this  respect,  Dower  dillers  from  Curtesy,  for,  with  the  exception 
of  a  few  particular  cases,  a  man  shall  only  he  tenant  hy  tl)e  curtesy  of 
such  tenements  as  he  or  his  wife  had  an  actual  seisin  of  durinji;  the  co- 
verture. The  reason  of  the  distinction  is  assigned  by  the  old  books:  the 
husband  has  himself  the  ])owcr  of  |)r()curini5  an  actual  seisin  of  his  wife's 
lands;  Init  the  wife  cannot  coin[)el  the  husband  to  enter  upon  his  own 
lands,  (t/) 

From  the  rule  that  a  seisin  in  law  is  sufficient  for  a  title  of  Dower  to 
attach  upon,  it  follows,  tliat  if  lands  descend  upon  a  man  who  is  married, 
or  who  marries  at  any  time  durinj^  the  continuance  of  seisin,  the  wife 
shall  be  endowed,  although  he  dies  before  entry  ;(y)  and  that  although  a 
stranger  enters  and  abates  on  the  death  of  the  ancestor;  for  the  law  con- 
templates that  there  was  a  space  of  time  *between  the  death  j.  ^r,Q  -, 
of  the  ancestor  and  the  entry  of  the  abator,  during  which  *-  "J 
the  lieir  had  a  seisin  in  law.(M')  The  case  put  by  Perkins  of  a  tenant 
dying  without  heirs,  and  a  stranger  abating  upon  the  lord,  who  dies  be- 
fore entry ,(^)  is  to  the  same  eflect.  The  seisin  is  cast  upon  the  lord  by 
the  act  of  law,  namely  the  escheat,  and  this  implied  seisin,  although 
afterwards  avoided  by  the  entry  of  the  stranger,  is  a  sufficient  founda- 
tion for  the  title  of  Dower. 

Upon  the  same  principle,  if  a  man  is  seised  of  a  remainder  or  rever- 
sion, expectant  upon  an  estate  of  freehold,  and  the  estate  of  freehold 
determines  by  the  expiration  of  the  time  comprised  in  its  limitation, 
before  or  during  the  coverture,  the  wife  will  be  dowable  althougli  he 
dies  before  entiy,  or  although,  after  the  marriage,  a  stranger  intrudes 
upon  his  seisin. (y)  But  if,  upon  the  determination  of  the  particular 
estate,  the  tenant  of  that  estate  holds  over,  the  husband  must  enter  to 
acquire  a  seisin;  and,  if  he  dies  without  entry,  his  wife  shall  not  be 
endowed. (~) 

This  difference  between  the  cases  of  intrusion  by  a  stranger,  and  de- 
forcement by  the  particular  tenant,  will  be  explained  by  considering 
that  in  the  former  case  the  law  casts  the  seisin  of  the  freehold  upon  the 
remainder-man  in  the  very  instant  of  the  determination  of  the  particular 
estate,  and  consequently  that  the  entry  of  the  stranger  must  be  subse- 
quent *to  the  commencement  of  that  seisin,  since  he  cannot  ^  ^  , 
enter  as  an  intruder  till  after  tiie  determination  of  the  par-  •-  -I 
ticular  estate;  while  if  the  particular  tenant  holds  over  after  his  estate 
is  determined,  the  implied  seisin  which  would  otherwise  have  devolved 
on  the  remainder-man  is  intercepted,  for  the  particular  tenant  has  a  con- 
tinuing seisin  of  the  freehold,  though  under  a  wrongful  title,  without  the 
intervention  of  any  event  which  can  aftbrd  room  for  the  supposition  of 
an   intermediate   seisin.     Hence,  the  reason  assigned  by  the  books  that 

(«)  Bro.  Dow.  75;  Co.  Litt.  31.  a.  Another  reason,  depending  upon  the  doctrine  of 
tenures,  is  given  in  8  Co.  71. 

iy)  Fitzh.  N.  B.  149,  (cites  7  E.  3.  66  ;  21  E.  3.  31:  3  H.  7,  103  ;)  Perk.  sec.  372  ;  Litt. 
sec.  448,  681  ;  Co.  Litt.  31  «.;  Gilb.  Dow.  391  ;  Bro.  Dow.  75,  (cites  21  E.  4.  60.)  ^o  if 
the  king's  tenant  died  seised,  and  the  heir  died  before  ho  entered,  his  wife  should  be  endowed. 
Fitzh.  N.  B.  149. 

(w)  See  the  suhscquent  part  of  this  chapter,  on  the  duration  of  seisin  requisite  to  the 
attachment  of  a  title  of  Dower. 

(x)   Perk.  sec.  371. 

(i/")  Perk.  sec.  372. 

(r)  Bro.  Dower,  pL  29,  (cites  2  H.  4.  22.) 


16  PARK  ON  DOWER. 

the  wife  is  not  dowable,  is  that  the  frank  tenement  does  not  determine 
without  entry. (a) 

It  should  seem,  however,  that  in  this  case  the  wife  has  diprimd  facie 
title  to  dower  upon  showing  that  the  previous  estate  determined  in  the 
lifetime  of  the  husband;  for  the  possession  being  supposed  vacant  by  the 
determination  of  the  particular  estate,  the  law  casts  it  upon  the  person 
next  in  succession,  and  will  not  presume  a  wrong,  as  a  deforcement 
would  be.  In  modern  practice,  too,  it  generally  happens  that  the  lands 
are  in  the  occupation  of  tenants  under  leases  for  years,  and  in  that  case, 
although  the  person  whose  estate  is  determined  should  continue  to  re- 
ceive the  rents  and  act  as  owner  of  the  estate,  yet  the  possession  of  the 
termors  for  years  would  preserve  the  seisin  of  all  persons  becoming 
entitled  to  the  reversion,  and  no  deforcement  could  occur  while  those 
termors  continued  in  possession. (6) 

r  *'?4  1  *Under  the  doctrine  of  uses  the  freehold  may  be  made  to 
'-  -•  shift  from  one  person  to  another  without  the  formality  of  a 

common  law  entry.  In  these  cases,  therefore,  it  would  seem  that  if  the 
tenant  of  the  estate  which  is  defeated  by  force  of  a  conditional  limitation 
or  proviso  of  cesser,  holds  over,  after  the  event,  if  he  has  the  freehold 
at  all,  it  must  be  under  a  new  seisin,  the  result  of  a  constructive  dis- 
seisin of  the  person  entitled  to  the  benefit  of  the  limitation  or  proviso. 
In  this  case,  then,  there  would  seem  to  be  an  intermediate  seisin  in  law 
in  the  person  in  whose  favour  the  shifting  use  operates,  and  if  so,  his 
wife  would  be  dowable  notwithstanding  the  deforcement;  but  this  is  a 
point  on  which  the  writer  does  not  recollect  to  have  met  with  any  au- 
thority. 

As  on  conveyances  under  the  statute  of  uses,  the  bargainee  or  cestui 
que  use  is  seised  in  law  immediately  on  the  delivery  of  the  deed,  his 
wife  will  be  dowable  although  no  entry  is  made,  or  other  act  done  by 
the  husband  to  acquire  a  seism  de  facto,  [c)  But  wherever  an  actual 
entry  is  necessary  to  give  effect  to  a  conveyance,  there  the  husband  must 
enter  to  confer  a  title  of  Dower  on  the  wife;  for  till  entry  he  has  neither 
seisin  in  law  or  in  fact.  The  case  of  an  exchange  at  the  common  law 
is  an  example  of  this,  where,  if  the  husband  die  without  executing  the 
exchange  by  entry  on  the  land  taken  in  exchange,  the  wife  will  not  be 
dowable  thereof  (f/)  So  in  the  case  of  a  partition  between^om^  tenants, 
the  wife  would  not  be  dowable  at  all  until  the  partition  was  executed  by 
P  ^„-  -,  *entry,  since  she  is  not  dowable  of  a  joint  seisin;  while  if 
•-  ^  the   partition  were   made    between   tenants  in   common,  or 

coparceners,  and  the  husband  died  before  entry,  she  would  be  dowable 
only  of  an  undivided  share. 

But  in  modern  practice,  exchanges  and  partitions  are  usually  made  by 
conveyances  to  uses,  and  as  the  estates  are  consequently  executed  im- 
mediately on  the  delivery  of  the  deed,  the  title  of  Dower  will  attach 
without  any  entry  by  the  husband.  And  even  in  the  case  of  a  bargain 
and  sale  under  a  common  law  authority  to  executors  to  sell,  as  the  ven- 
dee, when  ascertained  by  the  instrument,  is  considered  as  a  devisee,  and 
the  seisin  is  consequently  transferred  to  him  from  the  heir  without  en- 
try, the  same  position  would  seem  to  hold. 

(a)  Bro.  Dow.  pi.  29. 

(6)  Carhampton  v.  Carhampton,  1  Ir.  Term  Rep.  567. 

(c)  Gilb.  Uses,  96;  2  And.  161.  (d).  PerL  sec.  369. 


OF  THE  RULE  REQUIRING  A  SEISIN.  17 

As  to  incorporeal    hereditaments,  it    follows,  by  analogy,  that   the  • 
circumstances  e(|uivalent  to  an    actual   seisin    of  those    hereditaments 
which  lie  in  livery,  are  not  necessary  in  order  to  confer  a  title  of  Dower. 

Therefore  if  the  husband  jjurciiases  a  rent,  an*!  dies  before  the  day  of 
payment,  yet  the   wife   shall   be  endowed. (e)     Perkins  puts         ^ 
the  case   that  "if  a  rent  *is  granted  unto  a  man   in   fee,  and  L  J 

the  grantee  accepts  of  the  grant,  and  takes  a  wife,  and  at  the  day  of  pay- 
ment tiie  tenant  of  the  land  tenders  the  rent  unto  the  hnsband,  and  he 
will  not  receive  the  same,  but  utterly  lefuses  the  same,  and  dies  before 
any  receipt  of  the  rent  by  him,  or  by  any  other  in  his  name,  or  for  him, 
&.C.,  and  before  any  thing  paid  to  him  in  the  name  of  seisin  of  the  rent, 
&c.  yet  the  wife  shall  have  Dower  of  the  lent.  But  if  in  the  same  case 
the  husband  had  brought  a  writ  of  annuity  against  the  grantor  of  the 
rent,  and  had  recovered  in  that  action,  then  the  wife  shall  not  have 
Dower  thereof."(y')  The  ground  of  the  latter  distinction  is  that  by 
bringing  a  writ  of  annuity  the  grantee  elected  to  take  the  rent  as  a  per- 
sonal annuity,  and  not  as  a  rent-charge;  and  of  a  personal  annuity,  al- 
though a  hereditament,  a  woman  is  not  dowable.(^'-) 

The  points  determined  respecting  advowsons,  as  to  tenants  by  the 
Curtesy,  are  in  this  instance  applicable  to  Dower,  since  Dower  and  Cur- 
tesy are  on  the  same  footing  with  regard  to  incorporeal  hereditaments. 

In  f/iiare  inipedit  by  the  king  against  several,  the  defendant  made 
title  that  the  advowson  descended  to  three  coparceners,  who  made  par- 
tition to  present  by  turns,  and  that  the  eldest  had  her  turn,  and  after  the 
second  her  turn,  and  he  married  the  youngest,  *and  had  is-  „  »„_  -, 
sue  by  her,  and  she  died;  the  church  became  void,  so  it  be-  L  -^  J 
longed  to  him  to  jjrcsent;  and  did  not  allege  that  his  feme  ever  ])re- 
sented,  so  as  she  had  possession  in  fact,  and  yet  it  was  admitted  that  he 
may  be  tenant  by  the  curtesy  by  the  seisin  of  the  others,  (/i) 

In  considering  the  nature  of  the  seisin  necessary  to  the  attachment  of 
a  title  of  Dower,  it  is  to  be  observed  that  a  mere  naked  seisin  without 
riglit,  or  defeasible  by  title  paramount,  as  that  of  a  disseisor,(/)  al)ator, 
intruder,  discontinuee,(A,')  or  other  person  having  the  freehold  and  in- 
heritance l)y  wrong,  is  such  a  seisin  as  Dower  will  attach  upon,  as  against 
all  persons  deriving  title  under  such  tortious  or  defeasible  seisin,  and 
until  it  shall  be  avoided  by  the  entry  or  action  of  the  person  having 
right,  or  by  the  operation  of  the  law  called  remitter. 

The  avoidance  of  the  title  of  Dower  by  the  restoration  of  the  seisin 
under  the  rightful  ownership  will  be  considered  in  chajitcr  viii. 

(e)  Bro.  Dow.  pi.  35,  (cites  1 1  H.  4.  88.)  So  per  Heidoii.  Quod  non  negatur.  Bro.  Dow. 
pi.  71,  (cites  5  E.  4.  2.)  So  if  the  xcnl  descend.  Bro.  Dow.  pi.  66,  (cites  1  H.  7.  17.)  F. 
N.  B.  149  (D). 

If  a  rent  be  grunted  to  A.  and  his  heirs,  to  commence  after  the  death  of  B.,  and  the  gran- 
tee dies  before  B.,  yet  his  wife  shall  be  endowered.     Arg.  2  tiid.  1 10. 

The  same  law  ap[)ears  to  hold  even  as  to  curtesy,  for  the  hu.si)anii  has  no  means  of  obtain- 
ing an  actual  seisin  of  the  rent  before  the  day  of  payment.  Co.  Litt.  29  «.;  Bro.  Ten.  per  Ic 
Curt.  pi.  Ti ;  Perk.  sec.  469. 

(  /')   Perk.  sec.  373.  (^)  Vide  infra,  chap.  vii. 

(h)  Bro.  Ten.  per  le  Curt.  pi.  2,  (cites  21  E.  3.  31;)  Perk,  sec.  468;  Co.  Litt.  29  <j.;  1 
Co.  97  b.  arg.  (cites  7  E.  3.  66  «,  6 ;  and  3  H.  7.  5.  u.) 

(i)  17  E.  3.  24,  admitted  liy  the  issue  ;  and  sec  Litt.  soc.  448.  Countess  of  Barkshire  v. 
Vanlore,  Winch.  77  ;  Portington's  case,  Clayt.  71. 

(k)  Bro.  Discont.  do  Possession,  pi.  7,  (cites  24  E.  3.  28  ;)  Bro.  Dow.  pi.  50  ;  Filz.  Dow 
98  ;  Perk.  sec.  420. 

Vol.  XI.— 2  C 


IS  PARK  ON  DOWER. 

It  is  next  to  be  observed  that  the  law  requires  the  seisin  of  the  hus- 
r  *qo  -1  band  to  be  a  sole  seisin. (Z)  If  *the  husband  during  all  the 
■-  ^  time  of  the  coverture  be  seised  jointly  with  another,  no  title 

of  Dower  will  attach. 

By  analogy  to  the  cases  of  estates  determinable  by  condition,  or  by 
force  of  title  paramount,  it  might  have  been  supposed  that  the  title  of 
Dower  would  have  been  held  to  attach,  subject  only  to  be  defeated  by 
the  survivorship, (/«)  for  tliere  is  no  essential  quality  in  the  nature  of  a 
jointenancy  which  would  exclude  the  attachment  of  a  title  of  Dower  ab 
initio;  and  the  subsequent  avoidance  of  that  title  by  the  survivorship 
of  the  other  jointenant,  would  have  been  perfectly  intelligible  upon  the 
recognized  principle  that  the  survivor  is  in  of  the  whole  by  the  original 
feoffment  or  gift,  and  not,  as  to  any  part,  by  his  companion;  and  that 
the  estate  of  inheritance  which  the  husband  had  in  him  in  his  lifetime  is 
defeated,  or  disaffirmed^  by  the  survivorship. (/?.)  But  for  reasons  which 
|-  *oq  -1  it  is  now  difficult  *to  discover,  a  distinction  was  admitted 
L  "^  -'  between  the  effects  of  different  modes  by  which  estates  may 
become  defeated;  and  while,  in  most  instances,  a  title  of  Dower  was  held 
to  attach,  subject  only  to  be  determined  by  the  avoidance  of  the  estate 
out  of  which  it  was  claimed,  in  others  the  mere  possibility  of  avoidance 
was  held  to  intercept  the  title  of  Dower  ah  initio. 

This  being  the  principle  which  was  adopted  as  to  the  possibility  of 
survivorship  upon  a  joint  seisin,  it  was  at  a  very  early  period  determined 
that  if  one  jointenant  aliens  his  share,  his  wife  shall  not  be  endowed,(o) 
notwithstanding  the  possibility  of  survivorship  of  the  other  jointenant  is 
destroyed  by  the  severance. 

It  is  also  to  be  propounded  that  to  entitle  a  woman  to  Dower,  there 
must  be  a  sole  seisin  both  of  the  freehold  and  inheritance,  and  if  the 
husband  has  the  freehold  and  inheritance  by  successive  limitations,  it 
will  make  no  difference  whether  one  or  the  other  of  these  estates  is  joint. 
|-  *.„  -,  In  either  case  the  title  of  *Dower  will  be  excluded.  Further 
L  -'  observations  on  this  point  will  be  found  in  the  ensuing  chap- 

{l)  Lit.  sec.  45;  1  Roll.  Abr.  676  ;  Fitzh.  N.  B.  147,  (E),  Cowley  v.  Anderson,  Toih. 
83.  (as  to  curtesy.) 

{m)  In  Sumner  v.  Partridge,  2  Atk.  46,  where  the  estate  was  limited  to  the  wife  in  fee, 
with  an  executory  devise  over  on  her  dying  before  her  husband,  Lord  Hardwickesaid  "there 
is  no  difference  between  making  an  estate  of  inheritance  to  cease  in  the  wife  the  moment  she 
dies  [in  the  lifetime  of  the  husband]  and  to  arise  in  the  children,  and  a  jointenancy."  The 
idea,  that  the  non-attachment  of  a  title  of  Dower  on  a  jointenancy  is  the  result  rather  of  the 
change  of  title  produced  by  the  survivorship  than  of  any  original  disability  of  a  joint  seisin 
to  confer  such  a  title,  might  be  supported  by  several  passages  in  the  old  books.  See  Perk, 
sec.  .'iOO,  Toth.  183,  where  a  will  made  by  a  jointenant  who  afterwards  survives  his  com- 
panion is  treated  as  good,  though  the  contrary  is  law  at  this  day.  Swift  d.  Neale  v.  Roberts, 
3  Burr.  1488,  which  decision,  however,  turned  principally  on  the  language  of  the  statute  of 
wills. 

(n)  Co.  Litt.  37  b.  Chief  Baron  Gilbert  attempts  to  explain  the  rule  upon  feudal  princi- 
ples as  follows: — "  In  that  case  of  jointenancy,  during  the  joint  seisin,  the  wife's  contract  of 
dower  can  never  attach  upon  the  estate,  because  the  other  jointenant  comes  in  by  the  feudal 
contract,  superior  to  the  marriage  contract,  so  to  the  wife's  infeudation  ;  for  though  the  mar- 
riage contract  had  been  prior  to  the  jointenancy,  yet  it  will  not  attach  upon  it,  because  the 
estate  in  jointenancy  is  so  created  that  il  should  survive.  Et  ciijus  est  dare  ejusdem  dispo- 
nere;  therefore,  though  the  marriage  were  precedent  yet  it  cannot  take  place  upon  this  infeu- 
dation." Gilb.  Uses.  404.  This  proves  nothing  more  than  the  title  of  dower  should  not 
prevail  against  the  survivor. 

(o)  Fitzh.  N.  B.  150,  (cites  34  E.  1.  Dow.  179;)  Bro.  Dow.pl.  30,  (cites  3  H.  4.  6;)  and 
see  13  H.  4.  13. 


OF  THE  RULE  REQUIRING  A  SEISIN.  19 

ter  on  the  estate  in  point  of  quantity  and  quality  of  which  the  husband 
must  be  st.'isecl. 

Any  act  which  determines  or  severs  the  jointcnancy,  so  as  to  leave  a 
sole  seisin  in  the  husbanil  duriiit;;  the  coverture,  will  of  course  remove 
the  impediment,  and  render  the  wife  (lowahle.(yy) 

Tiie  cases  in  the  old  hooks  should  also  he  noticed,  where,  thoup;h  there 
was  in  ))oint  of  fact  a  joint  seisin  during  the  whole  of  the  coverture,  yet 
this  joint  seisin  having  hecn  avoided  after  the  death  of  the  husband,  he 
is  considered,  by  lelalion,  to  have  been  sole  seised  ah  initio,  and  his  wife 
is  consequently  dowable.  These  are  the  cases  of  joint  limitations  to 
huslianil  and  wife.  As  if  lands  are  given  to  luisbanti  and  wife,  and  the 
heirs  of  the  husband,  or  the  heirs  of  their  two  bodies,  or  to  their  heirs, 
and  the  husband  dies;  here  the  wife,  if  she  does  not  act  amounting  to  an 
agreement  to  the  joint  estate,  may  waive  it,  and  bi-ing  her  writ  of 
I)ower;((/)  "and  thereby  (remarks  Coke)  in  judgment  of  law  the  hus- 
band shall  be  said  sole  seised  ah  initio,  and  yet  in  truth  the  husband  and 
wife  were jointenants  during  all  the  coverture. — And  therewith  (he 
adds)  agrees  the  book  in  11  Ed.  III.,  Dow.  G3,  where  the  case  was,  Lord 
and  tenant  of  a  house  held  by  homage  and  lO.s.  rent.  The  tenant  en- 
feoffed W.,  the  lord  granted  the  seignory  to  husband  and  wife  in  tail: 
W.  attorned,  the  husband  died,  the  seignory  survived  *to  r  *i,  -i 
the  wife,  and  she  brought  a  writ  of  Dower,  in  bar  of  which   L  J 

the  lord  pleaded  acceptance  of  homage,  by  which  it  was  admitted  that 
the  writ  of  Dower  did  lic."(r) 

A  query  is  made  by  Perkins(.y)  whether,  if  the  grant  is  made  unto  the 
husband  and  wife /or  tlu-  life  of  tlie  hiishand,  the  remainder  unto  the 
right  heirs  of  tiie  husband,  the  wife  can  disagree,  because  her  estate  had 
determined  by  the  death  of  the  husband,  and  it  had  been  said  that  a 
disagreement  cannot  be  unto  an  estate  after  the  estate  is  determined. 
"  But  (he  adds)  it  seems  that  in  this  case  the  wife  may  disagree  by  bring- 
ing a  writ  of  Dower,  notwithstanding  the  estate  were  determined,  for 
otherwise  by  such  means  the  wife  might  be  ousted  of  her  Dower  in 
every  purchase  made  by  her  husband,  and  yet  during  the  marriage,  she 
is  always  by  law  under  the  government  of  the  husband  in  such  manner 
and  form  as  that  she  cannot  give  away  any  manner  of  profit  arising  out 
of  the  lands  without  tlie  leave  of  her  husband,  and  she  cannot  disagree 
unto  the  same  estate  during  the  marriage."(/) 

Although  a  sole  seisin  is  neccssay  in  order  to  confer  a  title  of  Dower, 
it  is  not  requisite  that  it  should  be  a  seisin  of  the  entirety.  A  sole  seisin 
of  the  freehold  and  inheritance,  in  any  particular  share  or  purparty  of 
lands,  either  as  a  tenant  in  common,   *in  coparcenary,  or  .      ^  , 

otherwise,  will  be  subject  to  the  attachment  of  Dower,  to  the  ^  J 

extent  of  the  share  of  each  tenant,  in  respect  of  whose  relation,  as  hus- 
band, to  auy  particular  woman,  tiuit  title  can  accrue.(?/) 

With  the  exception  of  the  cases  to  be  presently  noticed,  in  which  the 
seisin  of  the   husband  is  only  for  a  transitori/  instant,  any  period  of 

(/>)  Spc  Gilt).  Uses,  404.  Perk.  sec.  337. 

(9)   Tlui  l)ringiiig  of  tlie  writ  is  ol  itself  a  Jisagrcomcnt.     Perk.  sec.  352. 

(r)  3  Co.  27,  and  see  Perk.  sec.  3.'S2,  (cites  T.  11  E.  3.  C3.    E.  1  E.  3.  l.'i,)  1  .VnJ.  350. 

(s)  Sect.  3tJ2. 

\t)  Perk.  sec.  353,  (cites  T.  43  E.  3.     T.  19  E.  3.     Dow.  94.     T.  9  E.  3.  29.) 

(u)  Liu.  sec.  45.  Co.  Litt.  37  b.      1  Holl.  Abr.  676.    Sutton  v.  Holfe,  3  Lev,  b4. 


20  PARK  ON  DOWER. 

time,  however  short,  during  which  the  seisin  may  subsist,  will  afford  a 
foundation  for  the  attachment  of  a  title  of  Dower.  In  the  case  of  Dower 
at  the  common  law,  it  is  wholly  unnecessary  that  the  seisin  should  can- 
tinice  during  the  coverture,  as  is  usually  necessary  to  confer  a  right  to 
free])ench  by  the  custom. 

There  are  several  instances  in  which  a  seisin  in  the  husband,  though 
but  for  an  instant  of  time,  will  confer  a  title  of  Dower,  as  where  lands 
descend  upon  a  person  who  is  married,  and  a  stranger  abates  in  the  in- 
stant of  the  ancestor's  death;  the  wife  of  the  heir  will  notwithstanding 
be  entitled,  by  reason  of  the  seisin  which  her  husband  had  in  the  inter- 
vening instant.(i>) 

In  the  case  of  Broughton  v.  Randall(ty)  a  father  was  tenant  for   life, 
remainder  to  his  son  in  tail,  remainder  to  the  right  heirs  of  the  father; 
^  -.  both  *father  and  son  were  attainted  of  felony,  and  executed  at 

L  -I   the  same  time,  being  both  hanged  in  one  cart,  and   the  son 

had  no  issue  of  his  body:  and  it  being  proved  by  witnesses  that  the 
father  moved  his  feet  after  the  death  of  the  son,  it  was  found  by  verdict 
that  the  father  was  seised  of  an  estate  in  fee  of  which  his  wife  had  right 
to  be  endowed,  and  the  wife  had  judgment  accordingly. 

The  qualification  to  this  rule  is  where  the  seisin  of  the  husband  is  for 
a  transitory  instant;  that  is  to  say,  where  the  same  act  which  gives 
him  the  estate  conveys  it  also  out  of  him  again. (a?)  To  this  principle 
are  to  be  referred  the  following  cases  in  the  old  books: 

If  cestui  que  use,  after  the  statute  of  1  Ric.  III.  and  before  the  statute 
of  27  Hen.  VIII.,  had  made  a  feoffment  in  fee,  his  wife  should  not  be 
endowed.  (3/) 

"  If  the  husband  and  another  are  jointenants  in  fee,  and  the  husband 
makes  a  feoffment  of  his  moiety,  his  wife  shall  not  be  endowed  of  this, 
for  the  husband  had  a  sole  estate  but  for  an  instant,  (z) 

"  If  lessee  for  life  leases  for  the  life  of  another,  his  wife  shall  not  be 

endowed,  for  he  gains  this  fee  in  an  instant."(a)     And  "  if  tenant  for 

life  makes  a  feoffment  in  fee  and  dies,  the  wife  shall   not  have  Dower, 

*44      1  ^°^  though  the  husband  gave  fee  simple  by  ^alienation,  yet 

L  J  he  was  never  seised  in  fee  so  as  she  might  have  Dower."(6) 

But  it  seems  doubtful  whether  in  these  cases  the  widow  may  not  es- 
top the  feoffee  to  plead  ne  unques  seisie  que  dower,  &c.  by  the  feoff- 
ment.(c)  If  a  tenant  for  years,  or  at  will,  makes  a  feoffment  in  fee,  it  is 
clearly  admitted  that  the  feoffee  is  estopped  to  aver  that  the  feoffee  was 
not  seised  quoad  Dower,  and  it  is  therefore  said  in  the  books  that  his 
wife  is  dowable.  (rf) 

{y)  See  p.  31,  supra. 

(w)  Noy,  64.  In  the  short  note  of  the  case  in  Cro.  Eliz.  50.3,  it  is  said  that  the  father  and 
son  were  jointenants  to  them  and  the  heirs  of  the  son,  and  that  the  son  survived. 

(a.)   See  2  Bl.  Com.  131. 

{y)  Co.  Litt.  31  b.  (cites  27  H.8.  2.3.  F.  N.  R.  17  H-     3.  Dow.  192.) 

(z)  14  H.  4.  13  b.  and  see  F.  N.  B.  150  (K.)  (cites  34  E.  1.  Dow.  179.)  Co.  Litt.  31  b 
Jenii,  Cent.  3  ca.  1.  Cro.  Jac.  615. 

(o)  3H.4.  6. 

(6)  Bro.  Dow.  pi.  30,  (cites  3  H.  4.  6.)  1  Roll.  676 ;  Jenk.  cent.  3.  ca.  1;  Hargr.  Co.  Litt. 
31  6.  note  (3),  (cites  14  H.  4.  13.) 

(c)  See  3  H.  4.  6;  13  H.  4.  13.  In  Fitzh.  N.  B.  150,  marg.  the  point  is  stated  that  the 
wife  of  a  tenant  for  life  who  makes  a  feoflment  in  fee  shall  have  Doiuer  against  the  feoffee. 

{(1)  See  Moseley  v.  Taylor,  Sir  W.  Jones  317,  (cites  22  E.  4.  12,)  and  see  1  Preston  on 
Abstracts,  355.      Preston  on  Estates,  555. 


OP  THE  RULE  REQUIRING  A  SEISIN.  21 

"  If  the  conuzece  of  a  fine  doth  grant  and  render  the  land  to  the  con- 
uzor,  the  wife  of  the  conuzee  shall  not  be  endowed. "(e) 

So  also  where  a  tenant  in  special  tail  married  a  second  wife  who  was 
not  dowaijle  of  the  estate  tail,  and  afterwards  made  a  feoffment  in  fee, 
and  died,  it  was  resolved  that  his  widow  should  not  have  Dower;  "for 
this  livery  did  not  j^ain  unto  the  luisband  any  new  estate,  but  being 
eodem  'msitniti  drawn  out  of  him,  it  doth  not  gain  unto  him  any  seisin 
whereof  his  wife  is  dowable."(y') 

The  same  principle  was  recognised  by  Sir  Joseph  *Jekyll  ^  „  j^  -. 
in  the  modern  case  of  Sneyd  v.  Sncyd,(,ir)  where  upon  a  L 
question  whether  certain  copyhold  lands  were  to  be  included  in  an  as- 
signment of  Dower,  it  was  contended  f(M-  the  wife  in  the  affirmative,  be- 
cause the  husband  had  the  freehold  of  the  copyhold  estates  in  him  as 
lord  of  the  manor,  which  was  purchased  by  liim,  and  which  contained 
as  well  copyhold  as  freehold,  and  by  him  not  granted  out;  and  that  she 
was  therefore  dowable  of  the  said  copyhold;  or  that  if  he  did  grant 
them  out,  the  instantaneous  seisin  in  the  htisband  at  tlie  time  oft  fie 
purchase  was  sufficieiit  to  intitlc  her  to  such  Dower,  and  that  no  after 
act  of  his  could  give  away  that  right  which  was  once  attached  in  her. 
But  by  .Ickyll,  Master  of  the  Rolls,  "Though  no  cases  have  been  cited 
of  either  side,  and  seems  to  be  a  new  point,  yet  I  should  think  that  this 
instantaneous  seisin  of  the  freehold  of  the  copyhold  estates  in  the  hus- 
band will  not  entitle  the  defendant  to  her  dower,  for  notwithstanding 
there  may  be  no  case  of  the  same  nature  with  this,  yet  it  may  be  go- 
verned by  reason  and  general  rules  of  law:  as  for  instance,  the  conuzee 
of  a  fine  is  not  so  seised  as  to  give  his  wife  a  title  to  Dower;  and  in  the 
case  of  a  use,  the  widow  of  a  trustee  has  been  determined  to  have  no 
claim  of  Dower  from  such  a  momentary  seisin. (/j) 

If  this  case,  however,  is  rightly  reported,  there  *was  no  ^  ^^g  -. 
occasion  to  advert  to  this  point.  If  the  husband  granted 
the  new  copies  pursuant  to  the  custom,  the  estates  created  by  them 
would  take  effect  by  the  custom,  and  paramount  the  title  of  Dower,  al- 
though he  had  kept  the  lands  in  his  own  hands  for  a  lime  and  after- 
wards granted  them  out.(2)  This  point  does  not  seem  to  have  been  ad- 
verted to. 

(e)  2  Co.  77,  and  see  Cro.  Jac.  615  ;     Jenk.  Cent.  3.  ca.  1;  2  Vcrn.  58. 

(/)  Amcolts  V.  Catherick,  Cro.  Jac.  615  ;  and  see  Vin.  Abr.  '  Dower,'  (G.)  pi.  5  ;  3  Lev. 
11. 

(i?-)   1  Alk.  441. 

(/t)  It  was  referred  to  the  master  to  inquire  whether  the  husband  became  intitled  to  the 
copyholds  in  question  by  virtue  of  surrenders  from  the  tenants  by  copy  of  court-roll,  or  not. 
And  whether  he  granted  those  estates  out  again  by  copy  of  court-roll,  and  not  by  lease  for 
years  or  lives. 

(/)  Cham  V.  Dover,  1  Leon.  16,  and  see  chap.  xi.  infra. 


2   C    2 


22  PARK  ON  DOWER. 


[     *47    ]  ^CHAPTER  IV. 

Of  what  Estate  in  point  of  quality  and  quantity  whereof  the  Hus- 
band IS  SEISED,  a  Woman  will  be  dowable. 

The  doctrine  of  the  law  respecting  the  estate  of  which  a  man  must  be 
seised,  in  order  to  confer  a  title  of  dower  on  his  wife,  may  be  thus 
stated  by  way  of  general  proposition.  The  seisin  must  be  of  an  estate 
of  inheritance,  conferring  the  right  to  the  immediate  freehold,  as  the 
result  of  one  entire  limitation,  or  several  consolidated  limitations,  and 
not  of  successive  limitations,  conferring  distinct  estates  by  reason  of  an 
interposed  estate  of  freehold,  or  of  a  protection  against  merger.  It 
must  also  be  an  estate,  to  which  the  issue  of  the  wife  by  possibility  may 
inherit,  or  might  have  inherited,  if  living. 

It  is  the  business  of  this  chapter  to  amplify  and  illustrate  these  gen- 
eral rules. 

No  estate  held  for  a  chattel  interest  only  will  confer  a  title  of  Dower. 
The  interest  of  a  lessee  for  years,  being  originally,  and  for  many  pur- 
poses even  at  this  day,  only  a  contract  for  the  possession,  does  not  con- 
fer from  its  ownership,  a  privilege  which  was  bestowed  upon  the  wives 
of  freeholders;  and  terms  for  years,  or  other  chattel  interests,  created 
by  way  of  use,  by  devise,  or  limitation,  ensue  in  their  nature,  and  in- 
^.^  ,  cidents,  the  qualities  of  the  interests  from  which  these  mere 
L  J  modern  ^modifications  of  owership  originated.     A  term  for 

two  thousand  years,  although  equally  valuable  in  point  of  occupation 
with  the  inheritance,  cannot  confer  upon  its  owner,  or  his  wife,  any  of 
those  privileges  which  the  law  annexed  to  property  in  land,  at  a  period 
when  such  species  of  ownership  was  not  recognized  as  an  interest  in 
land. 

It  follows  a  fortiori,  that  a  person  whose  contract  for  possession  was 
determinable  Dt  the  will  of  the  lessor,  cannot  confer  a  right  of  Dower. 
A  copyholder,  therefore,  being,  strictly  speaking,  a  tenant  at  will,  can 
never  confer  on  his  wife  a  title  of  Dower,  properly  so  called.  Under 
the  growth,  indeed,  of  customary  privileges,  as  applicable  to  such  ten- 
ants, it  often  happens  that  the  wife  of  a  copyholder  is  entitled  to  an  in- 
terest in  the  copyhold  tenement,  on  her  surviving  her  husband,  analo- 
gous, in  its  general  outline,  to  that  of  a  dowress  at  the  common  law. 
Such  interest,  however,  is  purely  the  creature  of  the  custom;  and  to  es- 
tablish the  title  to  freebench,  as  it  is  called,  in  a  court  of  law,  such  cus- 
tom must  be  specifically  proved,  as  an  exception  or  qualification  to  the 
law  of  the  land,  so  far  from  being  any  part  of  it.  The  wife  of  a  copy- 
holder, as  such,  can  have  no  title  of  Dower,  by  the  Common  Law. (a) 

The  very  terms  of  the  rule  also  exclude  an  estate  of  were  freehold 
from  affording  a  foundation  for  the  attachment  of  Dovver,(6)  although 
such  estate  be  descendible  to  the  heirs,  or  heirs  of  the  body,  as  special 


(a)  Shaw  V.  Thompson,  4  Co,  30  ;  Hob.  215,216.  4  Co.  22. 
(i)  See  Exton  v.  St.  John,  Finch.  368. 


OF  WHAT  ESTATES  A  WIFE  IS  DOWABLE.  23 

occupants;  as  a  lcasc/7»/r  autre  vie,  Um'iiod    *to  tlie  lessee  ^     <,.» 
and  his  hcirs;(c)  or,  a  rent  granted  to  A.  and  his  heirs  during  ^  J 

the  life  of  n.{d) 

Upon  the  same  princij)lc,  a  wuinan  is  not  dowahle  of  a  rent  reserved 
upon  a  lease  for  life;  for  allhou^h  the  rent  goes  to  the  heir,  he  takes  it 
as  incident  to  tlic  reversion,  and  not  hy  reason  of  any  inheritable  quality 
of  the  rent.(c)  If  the  woman  was  dowahle  of  the  reversion,  she  would 
be  di)wal)le  likewise  of  the  rent,  as  incident  to  it;  but  the  existence  of  a 
freehold  lease  in  another  person,  excludes  her  title  of  Dower,  inasmuch 
as  the  reversion  docs  not  confer  the  right  to  the  immediate  freehold. (/) 
This  mode  of  stating  the  point  assumes  the  lease  to  be  made  before  a  title 
of  Dower  could  attach;  but  if  it  was  made  subsequent  to  such  attach- 
ment, she  is  of  course  dowahle;  but  then  she  is  dowahle  of  the  land,  and 
not  of  the  rent,  and  she  may  defeat  the  lease,  as  claiming  by  title  para- 
mount. There  is  no  privity  between  a  dowress,  and  a  lessee  under  a 
lease  for  life  made  subsequent  to  the  attachment  of  her  title. 

But  if  the  estate  of  the  husljand  is  in  its  own  nature  an  estate  of  in- 
heritance, it  makes  no  diflcrcnce  *that  it  has  a  determinable  r      ^ 
quality  attached  to  it,  for  the  wife's  title  of  Dower  will  at-  ^        50     ] 
tach,  subject  only,  where  the  determinable  quality  arises  from  defect  of 
title,  to  be  defeated  by  the  avoidance  of  the  estate  of  the  husband. 

Therefore,  a  base  fee,  carved  out  of  an  estate  hul,(g)  or  a  qualified 
fee,  as  the  Duchy  of  Cornwall, (A)  will  confer  titles  of  Dower,  as  against 
all  persons  claiming  those  estates.  Where  a  tenant  in  tail  is  attainted  of 
high  treason,  the  King  becomes  entitled  to  the  estate  as  long  as  there 
are  heirs  of  the  body  of  the  tenant  in  tail;  and  if  the  King  grants  this 
estate  to  a  man  and  his  heirs,  the  wife  of  such  grantee  will  be  dowahle 
of  it.(/} 

It  was  for  a  long  time  held  by  the  greatest  lawyers,  that  under  aliena- 
tions by  tenant  in  tail,  not  creating  a  discontinuance,  or  operating  as  a 
bar,  viz.  by  grant,  bargain  and  sale,  or  other  innocent  conveyance,  the 
alienee  had  a  mere  descendible  freehold,  simply  determinable  with  the 
death  of  the  tenant  in  tail.  This  opinion  was  perhaps  founded  on  sever- 
al passages  of  Littleton,  in  the  chapter  on  Discontinuances,(A')  where, 
speaking  of  such  conveyances,  in  opposition  to  tortious  alienations,  which, 
as  they  can  only  be  avoided  by  the  (tclio)i  of  the  issue  or  remainder-man, 
are  therefore  indefeasible  till  so  avoided,  he  treats  them  as  conveyances 
passing  an  estate  determinable  upon  the  death  of  *tenant  in  ^  J. 
tail;  meaning  nothing  more,  probably,  than  that  the  mere  L  ^  J 
entry  of  the  issue  when  their  title  accrued,  without  any  thing  further, 
avoids  them.  In  The  case  of  Fines,{l)  (Pasch.  44  Eliz.)  the  right  ex- 
position was  put  upon  the  text  of  Littleton,  and  it  was  there  said,  that 

(c)  Plow.  r^r:,G  ■  Bulstr.  1.35  (cites  22  E.  3.  19.  pi.  6;  45  E.  3.  13.  b.)  And  see  nracton. 
92.  b.  Low  V.  Biirron,  3  P.  W.  263;  and  see  I  Vcs.  IS.  303. 

((/)  Cro.  Eliz.  S05  ;  and  see  7  H.  6.  3.  0. ;  17  E.  3.  12  ;  28  Ass.  3. 

{>■)  Dro.  Dow.  pi.  44  (cites  7  H.  fi.  3.,)  pi.  60  (cites  20  Ass.  pi.  38.)  pi.  89.  (cites  M.  !. 
E.  C.)  I'crk.  sec.  348  (cites  8  K.  2.  184.)  Co.  Litl.  32.  a.  (cites  28  Ass.  3.)  Perk.  sec.  467 
makes  a  query  of  the  point  as  to  curtesy,  but  without  reason. 

(/)   Co.  Litt.  32.  (I. 

Ig)  3  Co.  84.  Ij.;  lOCo.  96.  a.;  .lenk.  274,  pi.  96;  Machell  v.  Clarke,  2  Kavm.  778. 

(/()  Jenk.  280.  pi.  5.  (»)   Plow.   557. 

{h)   Litt.^sec.  598,  600,  606,  7,  8. 

(/)  3  Co^  84. 


24  PARK  ON  DOWER. 

«  his  intent  was  not  that  the  grantee  had  but  an  estate  for  life,  and  that 
his  estate  should  be  al)sokitely  determined  by  the  death  of  tenant  in  tail, 
but  that  it  was  not  a  discontinuance;  nor  had  the  grantee  any  fixed  or 
durable  estate,  but  for  the  life  of  tenant  in  tail;  but,  that  the  issue  after 
his  death  might  at  his  pleasure  determine  it;  and  if  the  grantee  in  such 
case  should  have  but  an  estate  for  life  of  tenant  in  tail,  then  the  wife  of 
such  grantee  should  not  be  endowed:  against  which  it  was  adjudged  in 
24  E.  III.  28  b.^\m)  So  also,  by  the  first  resolution  in  Seymour's 
case,(n)  (where  the  nature  of  the  estate  of  the  alienee  of  tenant  in  tail 
was  fully  considered,)  it  was  held  that  the  wife  should  be  dowable  of 
that  estate;  but  whether  or  not  from  the  inaccuracy  of  Lord  Coke's 
report,  the  matter  was  still  left  upon  a  very  dissatisfactory  footing,  for 
the  inference  from  that  resolution  that  the  bargainee  had  an  estate  of 
inheritance,  is  done  away  by  the  language  of  the  report,  which  repre- 
sents the  court  throughout  as  treating  the  estate,  so  far  as  it  was  de- 
pendent upon  the  bargain  and  sale,  as  a  mere  descendible  freehold, 
determinable  on  the  death  of  tenant  in  tail,  and  expressly  taking  the 
^Ko  ~\  distinction  *between  a  descendible  freehold  under  the  bar- 
L  ^     J  gain  and   sale,  and  a  base  fee  under  the  subsequent  fine  to 

the  use  of  the  bargainee.  This  inconsistency  occasioned  subsequent 
judges  to  hesitate  in  admitting  ^^Seymour's  case  as  an  authority  on  the 
question  of  Dower;  and  C.  J.  Vaughan,  in  particular,  in  an  anonymous 
case(o)  reported  by  Carter  (and  in  which  it  was  held  that  the  bargainee 
of  a  tenant  in  tail  had  a  mere  descendible  freehold,)  asks, "  How  it  is 
possible  that  such  a  tenant,  who  by  the  very  book  in  the  10th  report, 
Seymour's  case,  hath  but  a  descendible  freehold,  how  comes  he  to  be  so 
distinguished  from  other  tenants  that  his  wife  shall  be  endowed?" — 
"  I  cannot  see  how  she  can.  There  is  no  reason  to  difference  it  from 
other  estates  of  freehold,  determinable  upon  other  acts  and  accidents,  so 
long  as  Paul's  steeple  shall  stand."  The  exposition  of  Littleton  in  The 
Case  of  Fines,  was  again  lost  sight  of  in  Tooke  v.  Glasscock,(7;)  in 
which  it  was  held,  that  by  the  bargain  and  sale  of  a  tenant  in  tail,  no- 
thing passes  but  an  estate  descendible  for  the  life  of  the  bargainor;  but 
the  law  was  finally  settled  upon  a  firm  foundation  in  Machel  v.  Clarke,(5r) 
(since  recognized  in  every  case  which  has  raised  the  question,)  where, 
after  solemn  argument,  it  was  adjudged  that  the  bargainee,  &c.  of  a 
tenant  in  tail  has  a  base  or  determinable  fee,  and  his  estate  continues 
until  it  is  avoided  by  the  entry  of  the  issue  in  tail.  In  this  judgment 
the  authority  of  Seymour's  case  was  recognized  *as  to  the 
L  5J  J  pQJj^^  q£  Dower,  and  the  decision  in  Tooke  v.  Glasscock  was 
denied  to  be  law. 

The  rule  has  been  already  expressed,  as  requiring  that  the  estate  of 
the  husband  should  confer  the  right  to  the  immediate  freehold;  that  is, 
the  first  estate  of  freehold,  or  the  estate  of  freehold  bestowing  the  pre- 
sent enjoyment,  except  so  far  as  that  enjoyment  may  be  subject  or  post- 
poned to  terms  for  years,  or  other  chattel  interests. 

Consequently,  if  there  be  a  prior  estate  of  freehold,  either  for  life,  or 
in  tail,  existing  during  all  the  time  of  the  coverture,  the  husband  never 

(/«)  And   so  also  Fitzh.  Dow.  98. 

(h)   10  Co.  95.  S.  C.  1  Bulstr.  165.  per  nom.  Hey  wood  v.  Smith. 

(o)   S.  Carter.  210.  (/<)    1  Saund.  260. 

(g)  2  Raym.  778  ;  2  Salk.  619  ;  7  Mod.  18;  11  Mod.  19  ;  1  Com.  119. 


OF  WHAT  ESTATES  A  WIFE  IS  DOWADLE.  25 

has  an  estate  of  which  his  wife  can  be  dowable;(r)  "  as  if  the  hushand 
makes  a  lease  Un-  life  for  certain  lands,  reserving  a  rent  to  him  and  his 
heirs,  and  he  taketh  wife,  and  dieth,  the  wife  shall  not  he  endowed, 
neither  of  the  reversion  (albeit  it  is  within  these  words  tpiicinentsj,  be- 
cause there  was  no  seisin  in  deed  or  in  law  of  the  freehold;  nor  of  the 
rent,  because  the  husband  had  but  a  particular  estate  therein,  and  no  fee 
simple. "(.s)  Thus  also,  "if  there  be  lord  and  tenant  by  fealty  and 
twelve  pence,  and  the  tenant  lease  the  tenancy  unto  a  stranger  for  life, 
and  the  lord  take  a  wife,  and  the  tenant  die  without  heir,  and  afterwards 
the  lord  dieth  before  ike  lessee  for  life,  the  lord's  wife  shall  not  have 
Dower  of  the  tenancy;  but  she  shall  be  endowed  of  the  seignory."(/) 

A  common  example  of  this  rule  put  in  the  books  *is  the  r  *.C4  -i 
case  of  a  person  seised  of  lands,  in  which  the  widow  of  a  ^  -" 

former  owner  has  an  estate  in  Dower  by  actual  assignment.  As  to  the 
particular  lands  assigned,  he  is  seised  only  of  a  reversion,  expectant 
upon  the  estate  of  freehold  in  the  dowrcss,  and  therefore  his  wife  can 
acquire  no  title  of  Dower  upon  those  lands  so  long  as  the  estate  of  free- 
hold subsists.  And  although  the  lands  liad  descended  to  such  ])erson  in 
possession,  and  he  had  subsequently  assigned  the  ])ower,  yet,  upon  prin- 
ciples which  will  be  considered  in  a  subsequent  chapter,  the  assignment 
of  Dower  will,  as  to  the  particular  lands  assigned,  defeat  the  seisin  of  the 
freehold  acquired  by  the  descent,  and  as  a  consequence,  all  incidents  of 
that  seisin,  (t/)  And  if,  during  the  life  of  the  tenant  in  Dower,  the 
owner  of  the  reversion  sells  the  lands  which  are  held  in  Dower,  although 
the  tenant  in  Dower  afterwards  dies  in  his  lifetime,  his  wife  will  have 
no  title  of  Dower,  for  he  had  no  seisin  but  of  the  reversion,  (y) 

liut  Dower  must  be  actually  assigned,  in  order  to  turn  the  estate  into 
a  reversion,  although  it  seems  to  be  immaterial  that  the  assignment  was 
against  common  right,  as  where  the  father  is  seised  of  three  acres  and 
dies,  and  the  three  acres  descend  to  the  son,  who  takes  a  wife,  and  en- 
dows his  mother  of  one  acre  in  allowance  of  all  her  Dower;  in  a  writ  of 
Dower  against  the  wife  of  the  father,  this  assignment  is  a  good  bar  of 
the  action,  (t^) 

•In  a  late  case  in  Ireland,  where  lands  are  usually  let  ^  ^-^  -. 
upon  leases  for  lives,  it  was  referred  to  the  master  to  inquire  ^  -■ 

whether  there  was  any  title  of  Dower  upon  certain  estates  so  let,  upon 
leases  made  before  the  marriage  of  the  claimant,  and  which  continued 
during  the  coverture.  The  master  reporting  that  the  widow  was  not 
entitled  to  Dower,  this  report  was  excepted  to,  but  Lord  Redesdale 
overruled  the  exception,  observing  that  the  husband  had  not  such  seisin 
as  to  entitle  her  to  Dower. (.r) 

In  the  case  of  incorporeal  hereditaments,  as  seignories,  rents,  com- 
mons, &.c.  the  suspension  of  the  freehold,  during  all  the  time  of  the  co- 
verture, will  prevent  the  attachment  of  Dower;  as  in  the  case  put  as  to 
Curtesy.  "If  a  tenant  make  a  lease  for  life  of  the  tenancy  to  the 
seignioress,  who   taketh  a  husband,  and  hath   issue,  the   wife  dieth,  he 

(r)   Perk.  sec.  340 

{s)  Co.  Litt.  32.  (I.  (cites  28  Ass.  3.     8  R.  2.  Dow.  181.     1  E.  6.  Dow.  80.) 

(/)   Perk.  sec.  339. 

(«)  Co.  Litt.  31.  a.  and  cases  cited  ;  Perk.  sec.  31.'j ;  Hughes  on  Writs,  119. 

(r)  Hughes  on  Writs.  149.  (u)  Ibid.  Hitchcns  v.  Hitchcns,  2  Vcrn.  405. 

(.r)  D'Arcy  v.  Blake,  2  Sch.  and  Lefr.  387. 


26  PARK  ON  DOWER. 

shall  not  be  tenant  by  the  curtesy,  but  if  the  lease  had  been  made  but  for 
years,  he  shall  be  tenant  by  the  curtesy. "(?/) 

But  it  seems  that  if  the  suspension  has  not  taken  place  previous  to 
the  marriage,  but  is  the  result  of  the  marriage  itself,  the  wife  shall  have 
her  Dower  notwithstanding.  Thus,  in  Perkins,(2r)  "  If  there  be  lord, 
and  a  woman  tenant  of  one  acre  of  land  by  fealty,  and  twelve  pence  rent, 
and  they  intermarry,  and  the  husband  die,  the  wife  shall  be  endowed  of 
the  third  part  of  the  rent  by  way  of  retainer;  and  yet  the  husband  was 
not  seised  thereof  in  deed  during  the  marriage  celebrated  betwixt  them, 
for  by  the  marriage  betwixt  them  the  seignory  was  in  suspense,  and 
P  ^cr  1  *^^  continued  during  the  marriage,  as  to  bring  an  action,  so 
L  -•  as  it  did  amount  unto  a  possession  in  law." 

The  technical  rule  of  law  requires,  that  the  freehold  and  inheritance 
should  be  in  the  husband  simul  et  semel.{a)  They  must  also  meet  in 
him  as  one  integral  estate,  and  not  as  several  or  successive  estates.  But 
it  is  not  necessary  that  they  should  result  from  one  entire  limitation,  or 
that  there  should  be  a  unity  of  title  as  to  the  freehold  and  inheritance. 
By  whatever  means  they  meet  so  as  to  become  absolutely  consolidated, 
the  attachment  of  a  title  of  Dower  is  the  consequence. 

It  is  immaterial,  that  an  estate  is  in  terms  limited  to  the  husband  for 
life,  with  remainder  to  his  heirs,(6)  or  heirs  of  his  body,  if,  in  point  of 
construction,  that  remainder  will  operate  to  vest  the  inheritance  in  pos- 
session in  the  husband.  The  rule  of  construction,  whenever  it  takes 
effect  upon  an  iniviediute  remainder  so  limited,  produces  a  merger  or 
consolidation  of  the  several  estates  expressed  by  the  limitations,  and  as 
a  consequence,  the  wife  becomes  dowable.  The  same  effect  arises  from 
the  operation  of  merger  in  the  case  put  by  Perkins. (c)  "  If  lands  are 
given  unto  J.  and  Alice  his  wife,  in  special  tail,  the  remainder  unto  the 
right  heirs  of  the  husband,  and  the  wife  die  before  issue  between  them, 
^  ^  and  the  *husband  take  another  wife,  and  dieth,  his  second 

L  ^ '  J  wife  shall  be  endowed."  Here,  by  the  death  of  Alice  with- 
out issue,  the  husband  became  tenant  in  tail,  after  possibility  of  issue 
extinct,  and  that  estate  being  no  longer  privileged  against  merger,  be- 
came consolidated  and  lost  in  the  remainder  in  fee,  so  as  to  make  him 
seised  in  fee  in  possession. 

But  the  interposition  of  any  vested  estate,  not  being  a  chattel  interest, 
between  the  limitation  to  the  husband  for  life,  and  the  remainder  to  his 
heirs,  will,  during  the  continuance  of  that  estate,  prevent  the  attach- 
ment of  a  title  of  Dower.  It  is  not  enough  that  the  husband  is  seised  of 
an  estate  of  freehold  in  possession,  and  of  an  estate  of  inheritance  in 
remainder  or  reversion  in  the  same  lands;  the  inheritance,  as  well  as  the 
freehold,  must  be  in  possession;  in  other  words,  it  must  be  the  imme- 
diate inheritance,  and  not  an  inheritance  expectant  upon  an  estate  of 
freehold  in  any  other  person,  interposed  between  the  freehold  and  in- 
heritance of  the  husband.  And  therefore,  if  lands  be  limited  to  A.  for 
life,  remainder  to  B.  for  life,  or  in  tail,  remainder  to  A.  in  fee,  unless  A. 
becomes  seised  of  the  inheritance  inpossession  during  the  coverture,  by 

{y)  Co.  Litt.  29  h.  (cites  1  E.  3.  6.      5  E.  3.  26.) 
(:)   Sect.  303  (cites  H.  1  E.  3.  6.) 

(a)  Perk.  sec.  333.  (6  Perk.  335. 

(c)  Sect.  338  (cites  H.  50  E.  3.  4.)  Bro.  Dow.  pi.  25j  46  E.  3.  24.  b.  22  E.  5.  3;  7  H. 
4.  25.  b.;  S.  P.  as  to  Curtesy.  Bro.  Estates,  pi.  25. 


OF  WHAT  ESTATES  A  WIFE  IS  DOWABLE.  27 

the  determination  of  the  estate  of  B.  the  wifu  of  A.  will  never  be 
dowable.  (r/) 

In  this  cusL',  the  intervening  estate  of  freehold,  although  it  may  possi- 
bly never  take  effect  in  possession,  preserves  the  several  estates  of  the 
husband  distinct,  and  free  from  the  consecjuences  of  merger,  and 
•consequently  prevents  the  inlieritance  from  being  executed  r  *eQ  1 
in  possession.  '-  -^ 

There  arc  other  instances  in  which  a  similar  protection  from  merger 
prevents  the  attachment  of  a  title  of  Dower.  As  if  the  tenant  fur  life 
leases  the  land  to  the  lessor  or  remainder-man, /«?•  the  life  of  I  lie  lessor 
or  rcmaindei'-man,  the  wife  shall  not  be  endowed, (e)  for  such  lease 
does  not  operate  as  a  surrender,  nor  is  there  any  merger  of  the  particular 
estate,  but  the  several  estates  remain  distinct  and  unconsolidated.  The 
reason  of  this  is,  that  when  a  tenant  for  his  own  life  makes  a  lease  to 
another  for  the  life  of  the  lessee,  the  tenant  for  life  retains  a  reversion, 
or,  as  it  is  rather  incorrectly  called  in  the  old  books,  a  possibility;  and 
when  such  lease  is  made  to  the  owner  of  the  inheritance,  this  reversion 
becomes  an  interposed  estate  of  freehold  between  tlie  lease  for  life  and 
the  inheritance.  Thus,  if  A.  is  tenant  for  life,  remainder  to  H.  in  fee, 
and  A.  makes  a  lease  to  B.  for  the  life  of  B.;  for  the  purposes  of  merger 
the  estate  stands  much  in  the  same  situation  as  if  it  had  been  originally 
limited  to  B.  for  life,  remainder  to  A.  for  life,  remainder  to  B.  in  fee. 
The  whole  estate  not  being  given,  it  was  no  surrender;  and  it  was  no 
forfeiture,  because  the  remainder-man  was  a  party. 

The  case  of  a  limitation  of  the  freehold  to  two  jointly,  and  of  the  in- 
heritance to  one  of  the  two,(/)  is  governed  by  the  same  principle.  The 
joint  seisin  ''of  the  freehold  (if  created  by  the  same  deed  ^  ^»p„  -. 
which  limits  the  inheritance),  operates  as  a  protection  against  L  -* 

merger,  and  the  inheritance  executes  sub  mode  only.  Perkins(,^)  thus 
puts  the  point:  "  If  lands  be  given  unto  two  men,  and  unto  the  heirs  of 
the  body  of  one  of  them  begotten,  and  he  who  hath  fee  tail  take  a  wife, 
and  dieth,  leaving  him  that  hath  the  freehold,  notwithstanding  he  that 
hath  the  iVeeholcl  [afterwards]  die,  the  wife  shall  not  have  any  Dower, 
because  tiie  estate  tail  was  not  executed  to  all  purjioscs  in  her  husband: 
and  yet,  if  a  stranger  hath  entered  after  his  death  who  hath  the  freehold, 
the  issue  of  the  donee  shall  have  a  formcdon  oi  le  disce/ider  against  him, 
and  shall  allege  the  esj)lees  in  his  father,  and  so  to  such  intent  the  estate 
was  executed  in  the  donee." 

This  seems  to  be  an  instance  in  which  the  law  remits  or  qualifies  its 
own  positive  rule  in  favor  of  the  intention. (A)  For  were  the  estate  tail 
to  execute  absolutely  in  the  person  to  whom  the  inheritance  is  limited, 
the  merger  of  the  freehold  for  one  moiety  would  sever  the  jointenancy, 
and  thus  defeat  the  intention  of  the  donor.  And  this  view  of  the  sub- 
ject aflbrds  a  key  to  the  distinction  taken  by  the  books,  that  if  the  in- 
heritance comes  to  the  husband  by  a  separate  conveyance,  or  subsequent 
descent,  the  freehold  would  be   immediately  merged  for  a  moiety,  and 


((/)  46  E.  3.  16.  b.;  I  Roll.  AI)r.  Dow.  pi.  9  ;  Bro.  Dow.  pi.  6';  Finch's  Law.  b.  2.  c.  3. 
125  (cites  40  E.  3.   15;)  Kng.  Lutw.  2'29  ;  Perk.  sec.  335  ;  1  Salk.  254,  in  Uatcs's  case. 

(e)  1  E.  3.  16,  Hro.  Estates,  pi,  67;  Co.  Litt.  42.  a.  (cites  1?  K.  2.  Dow.  95.  7  H.  6. 
18  E.  3.  48;)  2  Roll.  Alir.  496.  pi.  7;  Bro.  Dow.  pi.  17. 

(/)  Co.  Litt.  182.  a.  (j)  Sect.  334  (cites  T.  11  H.  7.  3.) 

(A)  Sec  Dyer.  9.  a.  pi.  22. 


28  PARK  ON  DOWER. 

^  1  the  jointenancy  consequently  severed. (z)     *In  this  case  then, 

I  J  the  wife  would  be  dowable.     Lord  Coke  remarks,  that  "  of 

ancient  time  it  hath  been  said,(^)  that  when  lands  have  been  given  to 
two  women,  and  to  the  heirs  of  their  twor  bodies  begotten,  that  the  hus- 
band having  issue,  should  be  tenant  by  the  curtesy  living  the  other  sister; 
for  that,  as  some  held,  the  inheritance  was  executed,  and  that  the  sisters 
were  tenants  in  common  in  possession,  and  consequently  the  husband  to 
be  tenant  by  the  curtesy."(/)  This  opinion  proceeded  upon  an  applica- 
tion of  the  strict  rule  of  law  which  would  involve  the  ownership  of  a 
prior  estate  of  freehold  in  that  of  the  inheritance,  without  adverting  to 
the  qualification  to  the  rule  admitted  in  order  to  give  effect  to  the  in- 
tention. As  two  women  are  incapable  of  mutual  issue,  they  have  neces- 
sarily, under  this  form  of  limitation,  several  inheritances,  as  tenants  in 
common,  while  they  take  d,  joint  estate  of  freehold  under  the  immediate 
limitation  to  them  two.  In  this  instance  of  several  estates  arising  under 
one  entire  clause  of  limitation,  admit  the  joint  estate  of  freehold  to  merge 
in  the  inheritance,  and  the  husbands  of  the  women  necessarily  become 
entitled  to  curtesy  in  the  respective  moieties;  but,  if  the  law,  in  order  to 
preserve  the  jointenancy,  and  carry  the  freehold  to  the  survivor,  sus- 
pends the  operation  of  merger,  this  qualified  execution  of  the  inheritance 
excludes  the  attachment  of  a  title  of  curtesy.  To  a  claim  under  that 
^  -,  title,  the  subsisting  jointure  of  the  freehold  is  a  ^sufficient 

t  J  answer,  although  for  some  purposes,  the  freehold  and  inheri- 

tance are  united.(??z) 

Whether  or  not  the  interposition  of  a  contingent  estate  of  freehold 
between  a  limitation  to  the  husband  for  life,  and  a  subsequent  remainder 
to  his  heirs,  or  heirs  of  his  body,  which,  if  immediately  following  the 
limitation  for  life,  would  be  construed  to  execute  in  the  husband  in  pos- 
session, will  prevent  the  attachment  of  a  title  of  Dower,  is  a  question  de- 
manding some  consideration. 

It  is  the  prevailing  language  of  the  decisions  and  treatises,  that  a  re- 
mainder to  the  heirs,  or  heirs  of  the  body,  so  circumstanced,  is  executed 
in  possession  in  the  tenant  for  life,  sub  modo\[n)  or,  in  other  words, 
that  the  estates  are  consolidated  or  united  until  the  happening  of  the 
contino-ency, — but  with  the  qualification  annexed  to  such  consolidation, 
that  if  the  contingency  does  happen,  they  shall  again  divide,  and  resume 
the  character  of  several  estates,  so  as  to  let  in  the  estate  originally  limited 


{i)  Co.  Litt.  182.  h.;  1  Keb.  889,  in  Merrill  v.  Rumsey;  Wiscot's  case,  2  Co.  60. 

(jt)  17  E.  3.  51.  78  ;  18  E.  339  ;  50  E.  3  ;  Statham,  tit.  Done ;  50  E.  3.  Feoffments  and 
Faitz.  97. 

(/)  Co.  Litt.  183.  a. 

(wi)  In  stating  the  law  on  this  head,  the  author  has  rather  submitted  to  what  appears  to 
be  the  existing  understanding  of  the  best  property  lawyers  of  modern  times,  than  satisfied 
himself  of  the  entire  consistency  of  that  exhibition  of  the  law,  with  all  the  cases  to  be  found 
in  the  old  books.  It  is  perhaps  next  to  impossible,  to  extract  from  the  several  reported  ex- 
pressions of  the  judges,  as  applied  to  the  varieties  of  each  particular  case,  any  consistent  and 
intelligible  definition  of  the  nature  of  estates  executed  nub  modo  as  it  is  called.  The  student, 
desirous  of  investigating  the  law  on  this  subject,  will  derive  much  assistance  from  Mr. 
Fearne's  Essay  on  Contingent  Remainders,  pp.  30 — 36,  5th  edit.;  and  Mr.  Preston's  Prac- 
tical Treatise  on  Conveyancing,  vol.  iii.  pp.  59 — 69. 

(n)  See  Lewis  Bowles'  case,  11  Co.  80;  Co.  Litt.  28.  a.;  Fearne's  Cont.  Rem.  28  ;  Pres- 
ton on  Rule  in  Shelly's  case,  80  ;  3  Treat  on  Conv.  113.  489. 


OF  WHAT  ESTATES  A  WIFE  IS  DOWABLE.  29 

upon  that  *conlingency.  The  consolidation  so  occasioned  ^g^  i 
would  seem  to  he  unaccompanied  hy  merger,(o)  for  the  efTect  •-  -■ 

*of  a  merger  would  he  to  accelerate  the  remainder  limited  ^  ,  _  .. 
to  the  heirs  of  the  hody,  and  hy  annihilating  the  particular  l  J 

estate  of  freehold  hy  which  the  contingent  remainder  is  supported,  it 
would  ipso  facto  destroy  that  contingent  remainder.  The  consolidation 
which  the  books  suppose,  would  therefore  appear  to  be  an  exception  to 
the  law  of  merger; — an  union  of  the  time  of  two  estates,  without  an  in- 
volving of  the  ownership  of  the  prior  estate  in  that  of  the  subsequent 
one.  The  question  consequently  is  not  merely  whether  an  estate  execu- 
ted in  possession,  subject  to  he  converted,  as  to  the  inheritance,  into  an 
estate  in  remainder,  shall,  in  the  meantime,  confer  a  title  of  Dower;  but 
whether  an  estate  executed  in  possession  in  a  manner  only,  and  com- 
prising the  ownership  of  two  distinct  estates,  one  an  estate  of  mere  tree- 
hold,  and  the  other  a  remainder  of  the  inheritance,  shall  be  considered 
as  ,90  executed  (putting  the  happening  of  the  contingency  out  of  the 
question,)  as  to  come  within  that  description  of  estate  upon  which  the 
law  allows  the  attachment  of  a  title  of  Dower.  In  a  system  of  property- 
law  like  that  prevailing  in  this  country,  it  is  one  of  the  inevitable  mis- 
fortunes attending  the  invention  of  any  new  artifice  in  the  modification 
of  ownership,  to  answer  the  purposes  of  a  particular  case,  that  it  is  giving 
birth  to  nearly  as  many  fresh  difficulties  as  there  can  be  complications 
of  the  existing  law  with  the  anomaly  thus  introduced.  The  idea  of  an 
estate  of  freehold  and  inheritance  executed  in  possession,  and  yet  com- 
prehending the  distinct  ownership  of  two  successive  estates,  neither  of 
them  answering  the  whole  of  that  description,  is  certainly  ^  ^^  ^ 
one  to  *which  it  is  a  matter  of  some  difficulty  to  apply  the  l  -J 

known  principles  of  the  common  law.  The  authorities  directly  in  point 
are  not  only  contradictory,  but  they  do  not  appear  to  have  seized  the 


(o)  In  Mr.  Preston's  learned  treatise  on  Merger,  3  Treat,  on  Conv.  113,  this  consolidation 
is  in  one  passage  termed  a  "  temporary  merger."  It  may  deserve  consideration,  howeyer, 
whether  the  law  is  not  more  correctly  stated  in  a  preceding  passage  in  that  page,  where  it  is 
treated  as  a  case  of  protection  from  merger.  See  also  p.  4b>9,  same  book.  It  is  difficult  to 
understand  how  any  merger,  properly  so  called  can  do  otherwise  than  destroy  the  contingent 
remainder,  and  even  assuming  the  avoidance  of  the  merger  by  the  happening  of  the  contin- 
gency, and  the  consequent  restoration  of  the  particular  estate,  it  is  diilicult  to  get  over  the 
circumstance  that  the  contingency  must  happen  first,  as  the  inducement,  to  such  restoration, 
so  that  at  the  instant  when  the  contingent  remainder  should  vest,  there  is  no  prior  estate  of 
freehold  in  existence,  although  there  may  be  the  next  instant,  or  in  the  next  fraction  of  that 
instant.  Lord  Coke  himself  would  hardly  have  gone  so  far  as  to  suppose  the  dormant  estaAe 
of  freehold  to  have  a  quality  of  pre-sciencc,  by  which  it  should  be  enabled  to  anticipate  by 
any  conceivable  portion  of  time,  the  happening  of  the  contingency.  It  comes  therefore  to 
the  question,  whether  a  preceding  estate  of  freehold  bij  relation,  as  opposed  to  an  actual  es- 
tate of  freehold,  will  support  a  contingent  remainder  ;  as  it  is  certainly  open  to  be  contended 
that,  upon  the  avoidance  of  the  merger,  the  particular  estate  and  inheritance  will  be  consi- 
dered in  intendment  of  law,  as  having  been  distinct  uli  initio.  This  is  a  point  upon  which 
the  author  does  not  recollect  to  have  met  with  any  authority  precisely  in  point.  The  cases 
put  by  Mr.  Fearnc  as  to  tenant  for  life,  with  contingent  remainders  over,  making  a  feoflracnt 
in  fee  upon  condition,  and  restoring  the  estate  for  life,  by  entering  for  condition  broken,  all 
suppose  him  to  enter  before  the  conlinpency  hap|)ens.  (3ont.  lum.  (liutl. )  ^49.  In  Puro- 
foy  V.  Rogers,  2  Saund.  337,  it  was  laid  down  by  ('hief  Justice  Hale,  that  "  if  the  contingwit 
remainder  cannot  take  effect  immediutchj  on  the  first  determination  of  the  particular  estate, 
whether  it  was  determined  by  merger  or  surrender,  or  in  any  other  way  whatsoever,  it  will 
never  vest  afterwards,  though  the  particular  estate  should  como  in  esse  again."  But  ihi* 
seems  too  general. 

Vol.  XI.— 2  D 


30  PARK  ON  DOWER. 

precise  difficulty  of  the  case.  In  Cordal's  case,(/))  lands  were  devised 
to  Ed.  Cordal  for  life,  remainder  to  his  first  son  in  tail,  and  so  to  the 
second,  remainder  to  the  heirs  of  the  body  of  Ed.  Cordal;  and  it  is  said 
to  have  been  resolved,  that  the  estate  tail  was  not  executed  [in  posses- 
sion,] for  the  possibility  of  the  mean  estate  that  might  interpose;  and 
therefore  it  was  always  disjoined  during  the  life  of  Ed.  Cordal,  so  that 
of  that  estate  his  wife  could  not  be  endowed. 

It  is  difficult  to  understand  with  precision,  what  the  judges  intended 
to  express  by  this  resolution.  Taken  in  its  literal  extent,  the  resolution 
is  certainly  not  law  at  this  day,  it  being  now  admitted  that  for  some 
purposes,  the  estate  tail  is  executed,  and  that  there  is  an  union  of  the 
freehold  and  inheritance;  and  Cordal's  case  has  accordingly  been  denied 
to  be  law  on  several  occasions. (^) 

In  Boothby  v.  Vernon, (r)  Anne  Boothby  was  tenant  for  her  life,  with 
a  contingent  remainder  to  the  issue  male  of  her  body  living  at  her 
death,  in  tail  male,  and  she  had  the  reversion  in  fee  bi/  descent.  The 
Court  of  Common  Pleas,  on  a  case  sent  there  by  the  Court  of  Chancery, 
certifiedt  hat  the  husband  of  Anne  Boothby  was  not  tenant  by  the  curtesy. 
Upon  a  subsequent  rehearing  before  Lords  Commissioners  Raymond 
r  *p.n.  1  ^^^  Gilbert,  it  was  argued,  that  the  husband  *had  a  right  to 
L  -I  be  tenant  by  the  curtesy,  because  his  wife  was  seised  of  the 

inheritance;  for,  though  she  had  an  express  estate  for  life  given  to  her 
by  the  will,  yet  there  was  no  immediate  remainder  which  possibly  could 
vest  during  her  life;  but  the  inheritance  was  limited  upon  a  contingent 
at  her  death,  and  therefore  she  being  heir  at  law  to  the  testator,  it  must 
descend  to  her  till  the  contingency  happen,  so  that  she  was  seised  of  the 
inheritance  subject  to  this  contingent.  The  case  was  also  argued  upon 
another  ground,  but  the  court  appear  to  have  decided  it  without  reference 
to  the  circumstance  that  the  wife  had  the  reversion  by  descent,  arguing 
only  upon  the  intention  of  the  testator,  that  shet  ook  no  estate  of  inherit- 
ance under  the  will;  a  point  which  was  not  made  at  the  bar.  Towards 
the  conclusion  indeed  of  the  judgment,  the  court  is  reported  to  have  put 
the  case,  that  "where  an  estate  for  life  is  limited  to  a  woman,  remainder 
to  her  first,  and  every  other  son  in  tail  male,  remainder  to  the  heirs  of 
her  body,  remainder  to  her  right  heirs,  here  it  is  plain  that  she  is  seised 
of  the  inheritance;  yet  if  she  hath  a  son,  her  husband  shall  not  be  te- 
nant by  the  curtesy,  because  the  contingent  estate  which  is  to  arise  upon 
her  death(5)  intervenes  between  her  estate  for  life,  and  the  inheritance." 
The  decision  of  Boothby  v.  Vernon  is  peculiarly  unsatisfactory.  The 
reasoning  of  the  judges  as  to  the  intention  of  the  testator,  quite  overlooks 
the  question;  such  intention  having  nothing  to  do  with  the  positive  rule 
^  1  of  l^w  which  cast  the  reversion  *upon  Anne  Boothby  as  the 

L  -■  heir  at  law  of  the  testator,  and  the  reference  made  to   the 

case  of  a  limitation  similar  in  terms  to  that  in  Cordal's  case,  is  expressly 
qualified  by  saying,  "  if  she  has  a  son;''  in  which  event,  no  doubt  could 
be  entertained  that  the  title  of  the  husband  to  be  tenant  by  the  curtesy 
would  be  avoided.  Indeed,  this  case  of  Boothby  v.  Vernon  cannot  be 
admitted  as  a  direct  authority  either  way,  the  judges  having  evidently 

(/>)  Cro.  Eliz.  315.         {q)  See  2  Saund.  386;  Ca.  t.  Hardw.  13;  2  Barn.  K.  B.  279. 

(r)  9  Mod.  147;  2  Eq.  Ab.  727. 

{*)  The  words  "  which  is  to  arise  upon  her  death,"  appear  to  have  crept  in  by  mistake. 


OF  WHAT  ESTATES  A  WIFE  IS  DOWABLE.  31 

treated  the  wife  as  being  a  ham  tenant  for  life,  with  a  possihility  to  her 
issue,  as  was  observed  by  Lord  llardwicke  in  Hooker  v.  Hooker. (/) 

In  the  last  mentioned  case,  lands  were  settled  to  the  use  of  William 
Hooker  the  elder  for  his  life,  remainder  to  his  wife  for  life,  remainder 
to  William  Hooker  (his  son,  and  heir  apparent)  for  life,  remainder  to 
his  first  and  other  sons  in  tail,  remainder  to  his  daughters  in  tail,  remain- 
der to  William  Hooker  the  elder,  in  fee.  William  Hooker  the  father 
and  his  wife  died  in  the  lifetime  of  tlie  son,  who  also  died  un//iou/  issue, 
and  tiie  question  was,  whether  his  widow  was  entitled  to  Dower. 

This  case  was  twice  argued  during  the  time  of  Lord  Chief  Justice 
Raymond,  and  on  each  of  these  arguments  the  court  were  strongly  of 
opinion  that  the  widow  had  a  title  of  Dower.(t/)  They  agreed,  that 
"  where  the  estate  for  life,  and  the  remainder  in  fee,  are  in  one  and  the 
same  person  by  the  same  conveyance,  there  shall  be  an  opening  of  those 
estates,  in  order  that  the  contingent  remainder  may  vest.  But  wher- 
ever the  remainder  in  fee  comes  lo  *the  person  Avho  has  the  ^  ^^-  -, 
estate  for  life,  and  there  is  no  vested  remainder  between,  in  •-  ^ 

in  such  case  <' the  contingent  remainder  is  always  destroyed,  whether 
such  coming  of  the  remainder  in  fee  is  by  the  act  of  God,'or  by  the  act 
of  the  party. (t>)  For  this  purpose  the  Chief  Justice  mentioned  the  case 
of  Harpool  v.  Kent,  Sir  T.  Jones,  76,  where  there  were  grandfather, 
father,  and  son,  the  grandfather  settled  his  estate  to  the  use  of  himself 
for  life,  the  remainder  to  the  use  of  the  father  for  life,  the  remainder  to 
the  use  of  his  first  and  every  other  son  in  tail  male,  the  remainder  to 
his  own  right  heirs.  The  grandfather  died  before  the  birth  of  the  grand- 
son, whereby  the  remainder  in  fee  came  to  the  father.  The  Court  was 
of  opinion  in  that  case  that  the  contingent  remainder  was  destroyed." 

After  the  appointment  of  Lord  Hardwicke  as  Chief  Justice,  the  case 
was  again  argued.  His  lordship  observed  that  the  general  questions  in 
this  case  were,  "  1st,  Whether  the  contingent  remainder  was  destroyed 
by  the  reversion  in  fee  falling  on  the  estate  for  life;  and,  2dly,  admitting 
that  it  was  not,  and  that  there  might  be  an  opening,  whether  this  possi- 
bility would  destroy  the  dower."  He  was  inclined  to  think  the  re- 
mainder was  destroyed.  He  agreed  to  the  distinction  between  the 
several  estates  coming  to  one  person  by  the  same  deed,  and  by  distinct 
acts.  Kent  and  Harpool,  he  observed,  "  was  a  very  strong  case,  and  in 
Purefoy  and  Rogers,  2  Saund.  380,  the  express  opinion  of  Hale  and  the 
*judges  was,  that  \\\c  piirchasing  the  remainder  in  fee  by  ^      ^^  , 

the  tenant  for  life  totally  destroyed  the  contingent  remainder,  ^  ^ 

and  that  it  could  never  be  let  in  again,  though  the  particular  estate 
were  revived. (e^)  In  the  present  case,  indeed,  there  was  wo  dkscent  of 
the  fee,  because  it  was  in  abeyance  during  the  life  of  William  Hooker 
the  elder,  [but]  theii  the  estates  came  to  be  consolidated,  and  therefore 
he  thougiit  the  contingent  interest  was  destroyed  in  this  case  likewise. 
But  supi)osing  it  were  not  so,  and  that  there  was  a  possibility  of  the 
estate's  opening  in  this  case  to  let  in  the  contingent  remainder,  yet  he 
thought  the  plaintilfhad  a  good  title  to  dower,  inasmuch  as  it  was  stated 


(0  Ca.  t.  Hardw.  13 ;  2  Barn.  K.  B.  200,  2.32,  279. 

(m)  2  Uarn,  K.  B.  200,  332.  (r)  This  is  too  general.     Vide  infra. 

(w)  This  seems  to  be  too  general.     See  Fearne,  Cont.  Rem.  5ih  Edit.  p.  349. 


32  PARK  OX  DOWER. 

that  William  Hooker  the  younger  never  had  any  issue. (.r)  The  single 
case  in  the  books  that  he  found  against  this,  was  that  in  Croke  [Cordal's 
case,]  but  in  Purefoy  v.  Rogers,  2  Saund.  386,  Lord  Chief  Justice  Holt, 
who   was   then  counsel,   said  Lewis  Bowles's  case   and  others   were 

»„„  -,  *against  it,  and  that  it  was  not  law;  and  in  ejectment  brought 
L  69  J  Jj-,"loj,j  Bridgman's  time,  that  case  in  Croke  was  denied  by 
him  likewise  to  be  law,  and  accordingly  he  (Lord  Hardwicke)  did  not 
take  it  to  be  so.  Page,  J.  Here  is  nothing  but  a  possibility  which  has 
never  happened,  nor  can  now  happen,  to  distinguish  this  estate  from 
an  estate  in  fee;  therefore  he  thought  the  wife  plainly  entitled  to  dower. 
Probyn,  J.  The  distinctions  taken  in  this  case  may  be  allowed,  and  yet 
the  widow  be  intitled  to  her  dower;  besides,  it  is  impossible  now  the 
contingencies  ever  should  happen." 

This  case  certainly  did  not  require  that  Cordal's  case  should  be  over- 
ruled upon  the  point  of  Dower,  and  it  is  observable  that  both  Lord 
Hardwicke  and  the  other  justices  are  reported  to  have  laid  stress  upon  the 
circumstance  that  the  contingency  was  become  impossible,  which  seems 
alone,  to  distinguish  it  from  Cordal's  case.  The  cases  in  which  Cordal's 
case  is  mentioned  to  have  been  denied,  were  both,  no  doubt,  (as  in 
Purefoy  v.  Rogers)  solely  upon  the  point  of  consolidation,  as  to  which 
Cordal's  case  certainly  cannot  be  now  supported.  The  judgment  of 
Lord  Hardwicke,  as  given  above,  (being  what  appears  the  preferable 
result  of  the  several  reports)  sets  the  case  in  a  somewhat  different  view 
from  that  in  which  it  has  hitherto  appeared  in  the  treatises.  Lord 
Hardwicke,  it  seems,  doubted  no  more  than  his  predecessor  Sir  Robert 
Raymond,  that  the  subsequent  descent  of  the  reversion  upon  a  tenant 
for  life  would  destroy  a  contingent  remainder;  but  his  doubt  upon  this 
case  arose  from  an  idea  that  the  reversion  did  not  come  to  the  son  by 

^^-„  -1  descent,  inasmuch  as  it  *was  in  aieywnce  during  the  life  of 
L  '^  -1  the  father. (y)  This  notion  being  now  universally  exploded 
as  to  conveyance  to  uses,  a  case  circumstanced  like  Hooker  v.  Hooker, 
might  at  this  day  be  determined  on  the  point  of  the  destruction  of  the 
contingent  remainders  alone.(r) 

The  observations  as  to  the  title  of  Dower  not  being  avoided  by  the 
estate's  actually  opening,  attributed  to  Lord  Hardwick  in  Annesley's 
report,  are  not  only  inconsistent  with  his  Lordship's  knowledge  of 

(x)  In  Annesley's  report  of  the  case,  Lord  Hardwick  is  made  to  say,  "  but  supposing  there 
was  a  possibility  of  the  estate's  opening  in  this  case  to  let  in  the  contingent  remainders,  yet 
he  did  not  think  it  would  defeat  the  doiver.  The  distinctions  in  the  law  books  were,  that 
when  a  remainder  comes  in  it  shall  -work  no  ivvong;  he  did  not  find  that  any  of  the  books 
say,  that  if  the  estates  opened  during  the  tenancy  in  fee  the  wife  should  not  be  endowed." 
This  is  certainly  bad  law.  The  vesting  of  the  contingent  remainder  disaffirms  the  seisin  in 
fee  of  the  husband,  and,  by  relation,  makes  him  seised  of  several  estates  ab  initio.  It  does 
no  wrong,  because  the  union  of  the  several  estates  was  not  absolute,  but  subject  to  this 
qualification. 

(t/)  See  Fearne  on  Cont.  Rem.  5th  edit.  352,  for  cases  in  which  the  same  idea  has  been 
entertained. 

(:)  As  relevant  to  this  point,  the  attention  of  the  student  should  be  called  to  the  distinc- 
tion taken  as  to  the  effect  of  the  descent  of  the  reversion  in  destroying  contingent  remainders, 
when  it  descends  from  the  person  who  created  the  particular  estate,  and  in  the  same  instant 
of  time  with  its  creation,  and  when  not.  In  the  former  case  it  is  held  that  the  contingent 
remainders  are  not  destroyed,  for  otherwise  the  remainders  would  be  void  in  their  creation  ;  but 
where  the  descent  of  the  reversion  u  not  immediate,  so  that  the  remainders  have  had  a  chance 
of  taking  effect,  the  coalition  of  the  life  estate  and  reversion  will  destroy  the  contingent  remain- 
ders.    See  Fearne,  Cont.  Rem.  341.  Gilb.  Uses  by  Sugden,  303,  n.  (2.)  3  Prest.  Conv.  399. 


OP  WHAT  ESTATES  A  WIFE  IS  DOWABLE.  33 

principle/but  witli  the  mode  in  which  he  referred  to  that  point  as  stated 
by  Barnardiston. 

Upon  these  considerations  the  writer  doubts  whetlier  the  case  of 
Hooiier  v.  Hooker  ought  to  be  considered  as  having  actually  over-ruled 
Cordal's  case  upon  the  point  of  Dower.  In  a  case  where  no  merger,  or 
destruction  of  tlic  contingent  reniaiiulers  has  taken  place,  and  the  j)ossi- 
bility  of  their  vesting  still  exists,  that  pf)int,  he  apprehends,  is  still  open  to 
decision;  in  the  meantime  it  can  hardly  be  considered  *safe  ^  ^-  , 
in  practice  to  treat  such  a  case  as  excluding  the  question  of  '-  J 

Dower. 

On  this  point  it  is  certainly  open  to  be  contended  that  the  law,  in 
denying  to  the  union  of  the  several  estates  the  effect  of  an  absolute 
merger,  having  no  other  object  than  the  preservation  of  the  contingent 
remainder,  and  that  object  being  answered  by  holding  that  the  estates  re- 
open upon  the  ha|)pening  of  the  contingency,  and  arc  i/ien  onhj  to  be 
considered  as  having  possessed  the  character  of  particular  estate  and  re- 
mainder,(«)  there  is  no  substantial  reason  for  denying  the  right  of  the 
wife  to  Dower  conditionally  until  the  contingency  happens,  and  abso- 
lutely upon  its  becoming  impossible  or  failing  of  effect. 

On  the  other  hand  there  is  certainly  great  difficulty  in  understanding 
how  the  existence  of  one  estate,  although  comprising  the  respective  times 
and  ownerships  of  two  estates,  can  in  any  sense  fulfil  the  terms  of  the 
rule  that  a  particular  estate,  of  freehold,  and  not  merely  the  time  of 
that  estate,  should  be  in  existence  at  the  period  when  the  contingent  re- 
mainder is  to  vest.  This  is  a  difficulty  which  the  *anoma-  ^  ^„ 
lous  notion  of  a  remainder  executed,  as  it  is  called,  suhmodo,  '-  '"J 
inevitably  involves,  and  which  it  must  be  left  to  greater  lawyers  to  un- 
ravel. But  probably  the  most  efficient  argument  against  the  attachment 
of  Dower  in  this  case,  is  that  the  old  books  abundantly  prove  that  at  the 
common  law  a  mere  possibility, {b)  altliough  attached  to  an  estate  indis- 
butably  executed  in  possession,  7icgatives  the  attachment  of  a  title  in  the 
wife,  and  does  not  merely  defeat  that  title  by  the  happening  of  the  pos- 
sibility. The  case  of  a  jointcnancy  of  the  fee  is  a  powerful  example  of 
this.  It  is  impossible  to  assign  any  cause  why  Dower  should  not  attach, 
subject  to  the  survivorship,  but  the  existence  of  the  possibility  neces- 
sarily incident  to  a  joint  estate.  The  cases  just  considered,  in  which  the 
execution  quodaimnodo  of  the  inheritance  in  one  of  two  jointcnants  of 
the  freehold  does  not  confer  a  title  of  Dower,  prove  the  same  j)osition. 
The  possibility  of  the  freehold  surviving  absolutely  excludes  an  incipient 
title.  The  case  of  a  lease  by  tenant  for  life  to  the  reversioner,  for  his 
life,  is  to  the  same  effect,  as  the  old  books  considered  the  mesne  rever- 
sion of  the  tenant  for  life  as  a  mere  possibility,  (c)     Until  these  cases  can 


(a)  Chief  Baron  Gilbert's  moJe  of  slating  the  law  favours  this  view  of  it . — '« If  a  feoff- 
ment in  fee  had  l)een  made  to  J.  S.  to  the  use  of  a  husband  and  wife,  remainder  to  the  eldest 
son  [unborn]  in  tail,  remainder  to  the  husband  anil  wife  in  tail,  &c.  here  is  a  tail  e.iecuted 
in  Ihe  liushand  and  ~.v:fc  iinmediutelij;  but  this  doth  not  drown  the  contingent  remainder  ; 
but  when  a  son  is  born,  the  estate  ojicns  and  ielx  it  in,  after  the  e.4ate  for  life  ui  the  husband 
and  wife  is  determined.  l''or  in  Eijuit)',  the  trusts  arose  in  this  manner,  because  this  ap- 
peared to  be  the  parties'  intention  by  their  own  limitation,  and  the  statute  executes  the  pos- 
session as  the  use  is  limited."     Gilb.  Uses,  1^5. 

(b)  This  must  however  be  carefully  distinguished  from  a  condition. 

(c)  Supra,  p.  58. 

2   D  2 

\ 


34  PARK  ON  DOWER. 

be  distinguished  in  principle  from  the  possibility  of  a  contingent  re- 
mainder taking  effect,  and  that  possibility  can  be  shown  to  be  rather 
analogous  to  the  case  of  a  conditional  or  defeasible  surrender  of  the  estate 
,_„  -,  *for  life  to  the  reversioner,(<:/)  it  seems  difficult  to  under- 
L  ^  stand  how  a  claim  of  Dower  can  be  successful  in  the  case 

under  consideration. 

Assuming  the  law  to  be  that  the  wife  has  a  title  of  Dower  upon  an 
estate  executed  in  the  husband  sub  modo,  it  may  become  a  question 
whether,  if  the  intervening  contingent  remainder  comes  in  esse  after 
her  title  is  consummated  by  the  death  of  the  husband,  as  by  the  birth  of  a 
posthumous  child,  the  estate  arising  under  that  remainder  shall  take  ef- 
fect subject  to  the  title  of  Dower,  or  shall  defeat  and  over-reach  that 
title.  The  writer  apprehends  that  on  such  remainder  coming  in  esse, 
the  husband  is  to  be  considered  as  having  been  seised  of  several  estates 
ab  initio,  and  that  for  all  purposes  of  title,  the  arising  of  such  remainder 
shall  devest  the  execution  of  the  estate  tail,  by  relation  to  the  situation 
of  that  remainder  in  the  original  limitations;  and  consequently  defeat 
the  title  of  Dower. 

It  was  for  some  time  doubted  whether  if  the  estate  was  limited  to  A. 
for  life,  remainder  to  B,  for  the  life  of  A.,  remainder  to  A.  in  fee  or  in 
tail,  this  interposed  limitation  to  B.  conferred  such  an  interest  as  would 
prevent  the  consolidation  of  the  estate  for  life,  and  remainder  in  fee,  or 
prevent  the  attachment  of  a  title  of  Dower.  This  point  called  for  a  de- 
cision in  the  case  of  Duncomb  v.  Duncomb,(e)  where,  upon  a  writ  of 
Dower,  it  appeared  by  special  verdict  that  William  Duncomb,  the  hus- 
band of  the  demandant,  was  tenant  for  life,  the  rem.ainder  to  J.  S.  and 
P  ^„.  -,  his  heirs  *for  the  the  life  of  William,  the  remainder  to  the 
'-  -*  heirs  males  of  the  body  of  William,  with  the  ultimate  re- 

mainder in  fee  to  George  Duncomb,  the  tenant  to  the  writ.  It  was  ar- 
gued for  the  demandant  that  the  whole  estate  was  really  in  William, 
aod  the  remainder  to  J.  S.  for  the  life  of  William  was  no  more  than  a 
possibility;  so  that  if  William  had  committed  a  forfeiture,  J.  S.  might 
take  advantage  thereof  for  preservation  of  remainders,  but  that  in  the 
meantime  the  whole  estate  is  executed  in  W.  D.  And  they  cited  Lewis 
Bowles's  case,(y )  which  was  that  of  an  interposed  contingent  remain- 
der to  unborn  sons.  But  the  court,  upon  the  first  argument,  without 
any  hesitation,  gave  judgment  for  the  tenant.  The  ground  of  this  de- 
termination was  that  J.  S.  had  an  actual  interposed  estate  of  freehold, 
and  not  merely  a  possibility.  This  case  has  ever  since  been  considered 
as  undoubted  law,  and  has  been  sanctioned  by  the  decisions  on  the 
common  limitation  to  trustees  to  preserve  contingent  remainders. (^) 

In  all  the  cases  in  which  the  attachment  of  a  title  oi  dower  is  prevent- 
ed by  the  existence  of  a  previous  or  intermediate  estate  of  freehold,  the 
obstacle  will  of  course  cease  by  the  determination  of  that  estate. (A)  As 
(-  ^_-  -,  where  there  was  grandfather,  father,  and  son,  and  on  the 
'-  ^  death  of  the  grandfather  *the  father  entered,  and  assigned 


(J)  Infra,  p.  75.  (e)  3  Lev.  437. 

(/)   11  Co.  83. 

Ig)  See  Dormer  v.  Parkhurst,  18  Vin.  Abr.  413.     5  Bro.  Pari.  Ca.  453.     13  East,  489, 
and  the  certificate  in  Colson  v.  Colson,  2  Atk.  350. 

(A)  Co.  Litt.  39  a.    See  Hughes  on  Writs,  179,  as  to  the  mode  of  pleading  in  such  case. 


or  WHAT  ESTATES  A  WIFE  IS  DOWABLE.  35 

Dower  to  the  grandmother,  wlio  afterwards  surrendered  to  liim,  paying 
ten  pounds  ;;er  (innum,  the  lather  died,  and  his  wife  hrouj^ht  a  writ  of 
Dower  against  the  son  for  Dower  of  the  whole  land^  and  recovered,  "be- 
cause the  father  had  the  fee  and  freehoUl  conjoined  in  the  life  of  the 
grandmotlier  by  the  surrender."(/)  So  also  if  the  tenant  for  life  surrer>- 
dcrs  to  the  reversioner,  upon  condition,  the  wife  of  the  reversioner  will 
be  dowablc  so  long  as  no  entry  is  made  for  condition  broken. (/t)  And 
any  grant  of  the  estate  of  the  tenant  for  life  operating  virtually  as  a  sur- 
render, although  not  so  in  form,  will  have  the  same  effect;  as  a  lease  to 
the  reversioner  or  remainder-man  and  his  heirs,  or  heirs  of  his  body,  for 
the  life  of  the  lcssee:(/)  but  a  lease  for  the  life  of  the  remainder-man  or 
reversioner  will  not  operate  as  a  surrender,  for  reasons  which  have 
been  already  considered, (m)  and  therefore  the  wife  will  not  be  dowablc 
in  that  case. 

So  if  husband  and  wife  arc  tenants  for  life,  and  surrender  to  him  in 
reversion,  his  wife  shall  be  dowahle,  although  the  surrender  is  defeasible, 
in  case  of  the  wife  surviving  her  husband. (/?)  The  point  of  distinction 
between  these  cases  and  the  case  of  the  lease  of  the  tenancy  ^  »^ 
for  life  to  the  reversioner  *for  Ids  life,  is,  tliat  in  the  latter  L  '  ^  J 
case,  there  is  an  existing  legal  reversion  in  the  tenant  for  life,  by  way 
of  interposed  estate,  and  not  merely  a  right  of  defeating  the  surrender 
upon  an  event. 

Another  example  is  put  by  Perkins:(o) — "  If  land  be  leased  unto  A. 
and  JJ.  for  the  life  of  C,  the  remainder  unto  the  right  heirs  of  A.,  and 
A.  lake  a  wife,  and  C.  dieth,  leaving  A.  and  B.,  and  A  dieth  leaving  B., 
his  wife  shall  be  endowed,  because  the  cestui  que  vie  died  living  A.  the 
husijand,  so  as  the  freehold  and  inheritance  are  joined  in  the  husband 
during  the  coverture."  Here  the  joint  seisin  of  the  freehold  for  the 
life  of  C.  prevented  the  remainder  to  the  heirs  of  A.  from  executing  ab- 
solutely in  A.,  and  excluded  the  attachment  of  Dower;  but  on  the  death 
of  C.  the  joint  seisin  of  the  freehold  determined,  and  the  inheritance  be- 
came executed  in  possession  in  A. 

To  let  in  the  title  of  Dower,  however,  the  particular  estate  must  de- 
termine or  be  destroyed  in  the  lifetime  of  the  husband.  Although  the 
wife  should  survive  the  husband,  and  afterwards,  during  her  life,  the 
particular  estate  should  determine,  she  would  not  thereby  acquire  any- 
right  to  be  endowed  of  that  estate,(/;)  because  there  was  no  seisin  dur- 
ing the  coverture  of  such  an  estate  as  her  title  could  attach  upon. 

An  estate  for  years  limited  prior  to  the  estate  of  the  husband,  or  aris- 
ing by  the  demise  of  a  former  owner,  or  of  tiie  husband  him-         ^„„ 
self,  is  no  impediment  *to  the  attachment  of  a  title  of  Dow-  L        ''J 
er,  since  it  does  not  prevent  the  husband  from   being  seised  of  the  im- 
vicdiute  freehold,  but  rather  protects  and  preserves  that  seisin. (y)     So 


((■)  Hughes  Writs  173,  (cites  M.  45  E.  3. 13.)  Bro.  Dow.  pL  17.  Bro.  Sci.  Fa.  pi.  2U 
(cites  42  E.  3.  9.) 

(A--)  44  E.  3.  316.  45  E.  3.  13  b.  Bro.  Dow.  pi.  74,  (cites  14  E.  4.  G.) 

(/)    18  E.  3.  4.5.  („.)  Supra,  p.  58. 

In)   Hughes  Writs  (cites  M.45  E.  3.  13.)  18  E.  3.  45. 

(o)   Sect.  337.  (  p)   Perk.  sec.  335. 

(7)  1  Roll.  Abr.  670,  pi.  7.  Bro.  Dow.  pi.  8!),  (cites  M.  I  E.  6).  Co.  Litt.  32  a.  Jenk. 
73.  ca.  38.  Perk.  sec.  335.  Finch's  Law,  b.  ii.  c.  3.  p.  125,  (cites  9  Ed.  U.  b.,)  Bates  v. 
Bates,  1  Lutw.  729,  and  sec  1  Taunt.  410. 


36  PARK  ON  DOWER. 

the  suspension  of  a  seignory/rent,  common,  or  other  incorporeal  hered- 
itaments, if  only  for  years,  does  not  operate  to  exclude  the  title  of  Dow- 
er from  attaching,  for  the  husband  is  still  seised  of  the  freehold. (r) 

Neither  will  the  interposition  of  an  estate  for  years  between  limita- 
tions of  the  freehold  and  the  inheritance  (in  other  respects  imme- 
diate) to  the  husband,  be  any  prevention  to  the  attachment  of  Dower.(5) 
For  all  purposes  of  estate,  properly  so  called,  the  husband  is  seised  of 
the  immediate  freehold  and  inheritance,(/)  although  with  a  qualification 
as  to  the  enjoyment,  to  the  extent  of  the  interest  of  the  termor.  In  all 
these  cases,  the  title  of  Dower  will  attach,  subject  only  to  the  term,  and 
when  the  wife  is  endowed,  she  will  become  the  reversioner,  quoad  the 
lands  assigned  to  her,  and  be  entitled  to  the  rent,  if  any,  reserved  on  the 
demise. (z<)  These  cases  were  originally  decided,  chiefly  upon  the  ground 
P  ^_„  -,  that,  at  the  common  law,  an  estate  for  years  *was  so  little 
■-  ^  regarded  as  to  be  no  impediment  to  the  freeholder  in  prose- 

cuting those  rights  and  remedies  to  which  he  would  be  entitled  if  in  the 
actual  possession,  or  which  the  reversioner  or  remainder-man  might 
have  availed  himself  of  against  the  particular  tenant,  if  there  had  been 
no  intervening  estate  for  years.  At  the  common  law,  indeed,  the  termor 
was  almost  wholly  in  the  power  of  the  freeholder,  who  might  have  de- 
stroyed his  term  by  a  feigned  recovery, (ij)  and  it  was  thought  unrea- 
sonable that  an  interest  so  precarious  should  be  any  impediment  to  the 
rights  of  those  who  might  at  pleasure  have  defeated  it;  and  Dower,  it 
must  be  recollected,  was  formerly  considered  as  a  privilege  annexed  to 
a  seisin  of  the  inheritance,  rather  than  as  incumbrance,  as  it  is  now 
treated. 

These  observations  as  to  terms  for  years,  are  equally  applicable  to 
every  other  species  of  chattel  interest,  precedent  to,  or  interposed  be- 
tween, the  estates  of  the  husband.  They  may  postpone  the  enjoyment, 
but  they  do  not  prevent  the  attachment,  of  Dower.  Therefore,  where  a 
person  devised  that  if  his  personal  estate  should  not  be  sufficient  for  pay- 
ment of  his  debts  and  legacies,  his  executors  should  pay  the  same  out  of 
the  rents  and  profits  of  his  real  estate;  and  when  debts  and  legacies  were 
paid,  he  devised  his  real  estate  to  his  son  in  tail,  who  married,  and  died 
before  the  debts  were  paid,  and  before  he  had  any  possession;  it  was 
(-  ^_„  -|  held  that  the  estate  in  the  executors  was  but  *a  chattel  inter- 
L  ^  est,  and  as  such  could  not  hinder  Dower,  (z^j) 

Lastly,  the  estate  of  the  husband  must,  as  to  its  inheritable  quality,  be 
such,  that  the  issue  of  the  husband  by  the  particular  woman  who  claims 
to  be  entitled  to  Dower  (whether  any  such  issue  is  had  or  not),  may  by 
possibility  inherit,  or  might  by  possibility  have  inherited,  as  heir  to  the 
husband. (a?) 

Therefore,  "  if  tenements  be  given  to  a  man  and  the  heirs  which  he 
shall  beget  of  the  body  of  his  wife — although  the  husband  die  without 
issue,  the  same  wife  shall  be  endowed  of  the  same  tenements,  because 

(r)   Co.  Lift.  29  b. 

(s)  Perk.  sec.  336.  Bates's  case,  1  Salk.  254.  1  Raym.  326,  1  Lutw.  729,  and  see 
Godb.  42. 

{t)  Perk.  sec.  336.  (m)  See  chap.  xvi.  infra. 

{v)  See  Co.  Litt.  46.  2  Inst.  321.  2  Raym.  785. 
l-w)  Kitchen  v.  Kitchen,  2  Vern.  403  ;  Cordeil's  case,  8  Co,  96.  a, 
(x)  Perk.  sec.  301;  Litt.  sec.  52. 


OF  WHAT  ESTATES  A  WIFE  IS  DOWABLE.  37 

the  issue  which  she  hy  possibility  might  have  had  by  the  same  husband, 
might  have  inherited  the  same  tenements.  But,  if  the  wife  dieth,  living 
her  husband,  and  after,  the  husband  takes  another  wife,  and  dieth,  his 
second  wife  shall  not  be  endowed  in  this  case."(y) 

The  material  point  is  that  the  circumstances  must  concur  that  llie  issue 
are,  or  would  be,  inherital)le  as  heir  to  the  father,  and  also  as  lieir  to  the 
estate  in  respect  of  a  seisin  of  which  during  the  coverture,  the  title  of 
Dower  is  claimed;  for,  although  they  may  be  inheritable  to  the  husband 
in  respect  of  some  other  estate  which  he  has  in  him  in  right,  or  in  re- 
mainder, this  alone  will  not  entitle  the  wife  to  Dower:  as,  <<  if  a  man 
be  tenant  in  fee  tail  general,  and  make  a  feoffment  in  fee,  and  taketh 
back  an  estate  to  him,  and  to  his  wife,  and  to  the  heirs  of  their  two  bo- 
dies, *and  they  have  issue,  and  the  wife  dieth,  the  husband  r-  ^^o  i 
taketh  another  wife  and  dieth,  the  wife  shall  not  be  endowed,  ^  J 

for,  during  the  coverture,  he  was  seised  of  an  estate  tail  special;  and  yet 
the  issue  which  the  second  wife  may  have  by  possibility  may  inherit.(c) 
Here,  the  only  estate  of  which  the  husband  had  a  seisin  during  the  co- 
verture of  the  second  wife,  was  not  inheritable  by  her  issue,  being  an 
estate  to  him  and  the  heirs  of  the  body  of  himself  and  his  first  wife;  and 
yet,  the  issue  of  the  second  wife  were  inheritable  to  the  elder  estate  tail, 
being  a  tail  general,  and,  in  default  of  issue  of  the  first  wife,  would  ac- 
tually succeed  to  that  estate. 

It  should  be  observed,  that  the  language  of  Littleton  in  treating  of  this 
subject  is,  "So  as  hy  possibility  it  may  happen,  that  the  wife  vi  ay 
have  issue  hy  her  hushand,  and  that  the  same  issue  may  by  possibility 
inherit,"  <fec.(«)  As  contra-distinguished  from  curtesy,  it  is  not  essen- 
tial to  the  attachment  of  Dower,  that  the  wife  should  actually  have  issue 
by    her   husband:    *the    possibility    of    issue  is    sufficient.   ^     ^  -. 

She  must,  however,  be  of  such  an  age  at  the  death  of  her  ^  -• 

husband,  as  to  have  had  a  possibility  of  conceiving,  or  bearing  issue,  and 
this  age  the  law  contemplates  to  be  that  of  nine  years.(^>i)  Till  she  is  of 
that  age,  the  law  does  not  consider  her  deserving  of  Dower,  in  respect 
of  her  incapacity  to  have  issue.  On  the  other  hand,  the  law  will  not  set 
any  bounds  to  the  possibility  of  having  issue  at  the  most  advanced  age, 
and  therefore  it  has  been  decided,  that  though  a  man  marries  a  woman 
of  one  hundred  years  of  age,  she  shall  have  her  Dower,  though  by  pos- 
sibility of  nature  she  cannot  have  issue ;(c)  for,  as  Lord  Coke  observes, 
"  seeing  that  women  in  ancient  times  have  had  children  at  that  age, 
whereunto  no  woman  doth  now  attain,  the  law  cannot  judge  that  to  be 


(y)  Liu.  sec.  52,  and  sec  Bro.  Dow.  pi.  36.  S.  P.  (cites  12  H.  4.  1.) 

(r)  Co.  Liu.  31.  i.  (cites  41  E.  3.  30.  44  E.  3.  2(j.)  Perk.  sec.  302,  (cites  M.  14  E.  4. 
30.)  2  Roll.  'Remitter.'  (K)  pi.  4;  Bro.  Dow.  pi.  18  (cites  46  E.  3.  24.)  pi.  9,  The  case 
as  put  by  Perkins  is  liable  to  mislead  the  student.  "  If  tenant  in  tail,"'  says  he,  "  take  a 
wife,  and  enfcotV  a  stranger,  and  take  back  an  estate  unto  him  and  his  wi^  in  special  tail, 
and  the  wife  die,  and  he  marrieth  another  wife,  and  liat/i  issue,  and  dieth;  the  second  wife 
shall  not  be  endowed,  yet  the  issue  is  .emitted  unto  the  general  tail."  Now,  if  this  was  in- 
tended of  the  issue  of  the  second  wife,  who  are  the  only  issue  mentioned,  and  which  the 
context  seems  to  require,  there  could  be  no  remitter,  because  the  defeasible  estate  tail  never 
descended  on  such  issue,  they  not  being  inheritable  to  it.  'i'lie  real  case,  however,  in  the 
books,  was  that  the  issue  was  by  the  first  wife,  which  removes  the  dilhculty. 

(a)   Sect.  52.  (6)   See  p.  17,  supra. 

(c)  2  Danv.  652  (cites  12  H.  4.  2.  b.)  Bro.  Dow.  pi.  36  (cites  12  H.  4.  1.)  Co.  Lilt. 
40.a.;RolI.Abr.  657. 


5s  PARK  ON  DOWER. 

impossible,  which  by  nature  was  possible:  and  in  my  time  (he  adds),  a 
woman  above  three-score  years  old  hath  had  a  child,  and  ideo  non  de- 
Jinitur  injure.^\d) 

It  appears  from  Tothill's  Reports,  that  a  bill  was  filed  in  the  Court  of 
Chancery  in  the  reign  of  James  I.  to  enjoin  the  prosecution  of  a  title  of 
Dower,  on  the  plea,  that  the  husband  was  past  memory,  at  the  time  of 
the,marriage,  but  the  bill  was  dismissed  to  law.(e) 

Assaming,  that  the  estate  of  the  husband  is  of  such  a  nature  in  point 
P  jj,„-  -,  of  quality  and  quantity  as  to  *be  subject  to  the  attachment 
L  J  of   a    title  of  Dower,  and  is   not  protected  by  any  legal 

jointure,  it  is  to  be  remarked,  that  the  consequence  of  law  is  inevitable, 
and  that  the  attachment  of  the  title  cannot  be  restrained  or  prevented  by 
any  proviso  or  qualification  contained  in  the  gift  of  the  estate.  The 
continuation  of  the  estate  of  the  husband  by  the  widow  is  considered  by 
the  law  as  a  portion  of  the  quantity  of  enjoyment  designated  by  the 
terms  of  the  limitation  itself;  any  attempt  therefore  to  curtail  this  right 
is  repugnant  to  the  grant  of  the  estate.  Thus,  it  was  said  by  the  court, 
in  Sir  Anthony  Mildmay's  case,(/)  "  if  a  man  makes  a  gift  in  tail,  on 
condition  that  the  donee  shall  not  commit  waste,  or  that  his  wife  shall 
not  be  endowed,  or  that  the  husband  of  a  woman  tenant  in  tail  after 
issue,  shall  not  be  tenant  by  the  curtesy,  or  that  tenant  in  tail  shall 
not  suffer  a  common  recovery,  these  conditions  are  repugnant,  and 
against  law,  because  by  the  gift  in  tail,  he  tacitly  enables  him  to  commit 
waste,  that  his  wife  shall  be  endowed,  and  to  suffer  a  common  recovery. 
And  therefore,  it  is  repugnant  to  restrain  it  by  condition,  for  that  would 
be  to  give  a  power,  and  to  restrain  the  same  power  in  one  and  the  same 
deed." 


[     *83     ]  *CHAPTER  V. 

On  the  modes  of  limiting  lands  on  conveyances  to  purchasers,  so 
as  to  prevent  the  attachment  of  a  title  of  dower. 

The  foregoing  discussion  of  the  circumstances  of  ownership  under 
which  a  title  of  Dower  will  attach,  naturally  leads  to  the  consideration 
of  the  different  limitations  which  have  been  adopted  by  conveyancers  to 
protect  purchased  lands  from  the  attachment  of  this  incumbrance. 

The  multiplicity  of  transactions  in  modern  times,  in  which  real  pro- 
perty becomes  the  subject  of  transfer  from  hand  to  hand,  has  made  it  an 
object  of  great  anxiety  among  professional  men  to  invent  modes  of  con- 
veying estates  so  as  to  intercept  the  title  of  Dower,  and  the  consequent 
expense  of  levying  a  fine  upon  any  subsequent  sale  or  mortgage. («) 
Some  of  tl)e  earliest  methods  adopted  to  accomplish  this  object  appear 
to  have  been  those  of  conveying  the  fee  to  a  trustee,  in  trust  for  the  pur- 


(d)   Co.  Liu.  40.  a.  (e)  Pennington  v.  Cook,  Toth.  81.  .3  Jac.  lib.  B.  f.  6. 

(  f)  6  Co.  41;  and  see  Dy.  343.  b.  in  the  Earl  of  Arundel's  case,  Shep.  T.  128  ;  Co.  Litt. 
224.  a. 

(a)  See  several  of  the  old  forms  of  limiting  estates  so  as  to  prevent  Dower,  in  5  Povir. 
Prec.  by  Barton,  14. 


OF  CONVEYING  LANDS  80  AS  TO  PREVENT  DOWER.         39 

chaser,  or  to  a  trustee  and  tlie  purchaser  jointly  in  trust  as  to  the  trustee 
for  tlie  purchaser,  liotli  these  modes  were  highly  ohjectionable,  on 
account  of  the  expense  and  trouble  of  getting  a  conveyance  from  the 
trustee  or  his  heir,  who  might  be  an  infant,  a  married  woman,  a  person 
■•unknown,  or  residing  abroad,  or  at  a  distance;  besides  the   ^     ,  , 

risk  of  the  legal  estate  escheating  to  the  crown  for  want  o(  ^  J 

heirs  of  the  trustee,  or  passing  by  general  words  in  liis  will,  and  be- 
coming limited  in  tail,  so  as  to  require  a  fine  or  common  recovery  as  j)art 
oi"  the  conveyance,  or  even,  during  the  non-existence  of  a  tenant  in  tail, 
an  act  of  parliament.  Besides,  where  the  estate  was  limited  to  the  pur- 
chaser and  trustee  jointly,  if  the  trustee  died  in  the  life-time  of  the  pur- 
chaser, the  object  of  the  precaution  was  at  once  defeated,  as  the  purchaser 
becanie  sole  seised,  and  his  wife  consequently  dowable.  To  avoid  the 
inconvenience  of  infant  heirs,  &.c.  the  lands  were  sometimes  conveyed 
to  the  purchaser  and  a  trustee,  and  the  heirs  and  assigns  of  the  purchaser 
in  trust,  as  to  the  estate  of  the  trustee  for  the  purchaser;  but,  the  same 
danger  attended  this  method  of  the  husband  becoming  ultimately  sole- 
seised.  "  To  obviate  these  inconveniences  (it  is  remarked  by  Mr.  Sug- 
den),  it  became  usual  to  convey  the  estate  to  such  uses  as  the  purchaser 
should  by  deed  or  will  executed  in  a  particular  manner  direct  or  ap- 
point, and  in  default  of  appointment,  to  the  purchaser,  his  heirs  and 
assigns.  This  limitation  was  suggested  by  the  observation,  that  the  ex- 
ercise of  such  a  power  defeated  the  estate  limited  in  default  of  its  execu- 
tion. JJut  after  some  time,  it  was  settled  that  estates  limited  in  default 
of  the  execution  of  such  a  power  were  vested,  subject  to  be  devested  by 
an  exercise  of  the  power.  It  then  became  a  question  whether,  as  a  right 
of  Dower  attached  on  the  estate  in  fee,  which  was  vested  until  appoint- 
ment, a  subsequent  exercise  of  the  power  *could  drive  it  ^  ^,„_  -, 
out — a  question  upon  which  learned  men  still  continue  to  '-  -' 

diflt'r.(6)     It  was  also  doubted  whether  the  power  was  not  merged  in 
the  lee,  although  it  is  now  settled  that  it  is  not.  "(c. 

The  improvement  upon  this  form  of  limitation  now  generally  adopted 
seems  to  have  been  introduced  by  JVIr.  Fearne,  and  was  suggested  to 
him  by  the  decision  in  Duncomb  v.  Duncomb  already  noticed.  In  a 
note  to  the  fourth  edition  of  the  Essay  on  Contingent  Remainders, (<^/) 
he  observes,  that  that  case  "  suggests  a  mode  of  preventing  dower's  at- 
taching upon  purchased  lands,  which  at  the  same  time  that  it  puts  the 
whole  estate  completely  in  the  purchaser's  power,  without  any  recourse 
to  the  trustee,  vests  the  legal  freehold  in  him  solely,  and  on  his  decease, 
leaves  the  legal  inheritance  to  his  heir,  absolutely  discharged  from  the 
medium  of  any  trust.  For  this  purpose,  the  lands  may  be  limited  to 
the  use  of  his  appointees,  &c.  in  the  fullest  manner,  and  in  default  of  ap- 
pointment to  the  use  of  him  and  his  assigns  during  his  life;  and  from 
and  after  the  determination  of  that  estate  by  any  means  in  his  life-time, 
to  the  use  of  some  person  and  his  heirs  during  the  natural  life  of  the 
purchaser,  in  trust  for  him  and  his  assigns;  and  Irom  and  after  the  de- 
termination of  the  estate  so  limited  in  use  to  the  said  trustee  and  his 
heirs,  to  the  use  of  the  purchaser  his  heirs  and  assigns  for  ever."  It  is 
observable  that  in  this  form  the  limitations  of  the  use  arc  alone  sufficient 


(6)  See  this  point  discussed  in  chap,  viii,  infra. 

(c)  Note  to  Gilb.  Uses,  by  Sugden,  p.  321.  (J)  Vol.  i.  p.  509. 


40  PAKK  ON  DOWER. 


*9fi     1  to    prevent  the  attachment  of  a  title  of  Dower,  without  1 
L  -'  aid  of  the  power  of  ^appointment;  but  the  advantage  of 


the 
re- 
taining that  power  is,  that  it  enables  the  purchaser  at  any  time  to  put 
an  end  to  the  estate  limited  to  the  trustee,  and,  without  his  concurrence, 
to  vest  the  entire  fee  in  a  third  person.  In  addition  to  this  general 
power  of  appointment,  the  purchaser  has,  under  this  form  of  limitation, 
the  immediate  freehold,  conferring  on  him  the  present  legal  right  of 
bringing  ejectments,  making  distresses,  &c.  in  his  own  name.  There  is 
next  the  limitation  to  the  trustee  for  the  life  of  the  purchaser,  which, 
as  a  vested  estate  of  freehold,  prevents  the  consolidation  of  the  estate 
for  life  and  remainder  in  fee  of  the  purchaser,  and  by  preserving  the  dis- 
tinct characters  of  those  several  estates,  prevents  the  attachment  of  any 
title  of  Dower.  The  ultimate  limitation  of  the  fee  to  the  purchaser  vests 
the  legal  inheritance  in  him,  so  that  if  he  dies  without  exercising  his 
power  of  appointment,  or  having  only  created  particular  interests  by  it, 
the  inhei'itance  will  be  vested  in  his  heirs  or  devisees,  uncumbered  with 
any  title  of  Dower,  and  discharged  of  the  estate  of  the  trustee,  that  es- 
tate having  determined  by  the  death  of  the  pnrchaser. 

These  limitations,  with  some  slight  variations,(e)  have  ultimately  been 
adopted  by  the  profession  at  large;  but,  there  is  perhaps  no  subject 
within  the  whole  scope  of  conveyancing,  which  has  experienced  more 
discussion  in  practice,  or  which  was  so  long  exposed  to  the  cavils  and 
criticisms  of  the  half-informed.  But  even  conveyancers  of  great  emi- 
nence have  differed  upon  many  minor  points,  arising  upon  the  framing 
s-_  -.  of  these  limitations,  and  the  practice  is  not  *yet  so  uniform 
L  -"as  might  be  wished.     The  prior  limitation  to  such  uses,  &c. 

as  the  purchaser  shall  appoint,  generally  requires  that  the  appointment 
shall  be  executed  in  the  presence  of  two  or  more  witnesses.  On  this 
point,  Mr.  Butler  observes,  "  that  no  good  reason  can  be  assigned  for  re- 
quiring any  number  of  witnesses  to  the  execution  of  the  deed  by  which 
the  power  is  executed;  it  seems  therefore  sufficient  to  require,  that  the 
deed  shall  be  legally  executed. "(/)  On  the  other  hand  it  is  remarked 
by  Mr.  Sugden,  "  It  is  not  of  course  essential  that  any  solemnities 
should  be  required  to  the  execution  of  the  power,  but  the  editor's  im- 
pression is  that  they  ought  never  to  be  omitted.  It  is,  even  with  this 
precaution  too  frequently  a  question  whether  a  deed  operates  as  an  ex- 
ecution of  the  power,  or  as  a  conveyance  of  the  interest.  The  ceremo- 
nies required  to  the  due  execution  of  the  power  always  afford  some 
clue  to  solve  this  question,  for  if  they  are  adhered  to  in  the  deed  exe- 
cuting the  power,  that  is  some  evidence  of  the  intention."(^)  The 
more  prevailing  practice  certainly  is  that  which  is  recommended  by 
Mr.  Sugden,  but  in  later  drafts  of  a  conveyancer  of  great  eminence,  an 
attestation  by  "  one,  two,  or  more"  witnesses  is  all  that  is  required, 
which,  as  almost  all  deeds  are  attested  by  at  least  one  witness,  seems  to 
be  out  of  the  scope  of  the  reasoning  advanced  by  Mr.  Sugden  in  favour 
of  the  attestation  clause,  and  to  bring  it  very  nearly  within  the  general- 
ity of  the  words  recommended  by  Mr.  Butler. 


(e)  See  numerous  forms  of  uses  to  prevent  Dower,  in  5  Pow.  Prec,  14.  and  1  Bart.  Free. 
522.  n. 

(/)  Note  to  Fearne  on  Cont.  Rem.  5th  edit.  p.  .347. 
(V)  Note  to  Gilbert  on  Uses,  3d  edit.  p.  324. 


OP  CONVEYING  LANDS  SO  AS  TO  PREVENT  DOWER.  41 

•Till  of  late  years,  the  forms  of  the  most  eminent  convey-  ^     ,_„      ^ 
ancers  extended  the  power  of  appointment  to  the  will  of  L  •' 

the  purchaser,  as  well  as  to  deeds  or  instruments,  and  even  now,  those 
commonly  found  in  the  olllces  of  attornies  are  so  penned.  This  is  a  de- 
fect in  Ihuse  forms  which  improving  ))racticc  is  every  day  exploding. 
It  not  only  uselessly  increases  the  length  of  the  clause,  hut  it  is  calculat- 
ed to  raise  doubts  whether  the  will  of  the  purchaser  operates  as  a  de- 
vise under  the  ownership,  or  as  an  appointment  of  the  use,  which  in 
some  cases  may  involve  a  title  in  difliculty.  No  advantage  can  be  de- 
rived from  it,  as  tlic  purchaser  has  the  entire  ownership  in  himself,  and 
for  all  purposes  of  testamentary  disposition,  can  do  every  thing  by  de- 
vise of  the  land,  which  he  could  do  by  appointment  of  the  use.  The 
clause  seems  to  have  been  thoughtlessly  adopted  form  the  old  forms,  in 
which  the  lands  were  limited  to  such  uses  as  the  liusl)and  should  appoint 
and  subject  thereto,  to  himself  in  fee.  Now  here,  assuming  that  the 
power  of  appointment  can  be  relied  on  at  all,  there  was  an  obvious  utility 
in  extending  it  to  an  appointment  by  will,  as  well  as  hy  deed,  for  as  in 
default  of  appointment  the  wife  was  dowable,  she  would  otherwise  have 
been  enabled  to  defeat  the  testamentary  disposition  of  the  husband, 
made  under  the  ownership.  This  point  may  deserve  attention,  if  it 
should  ever  be  decided  that  the  exercise  of  a  power  of  appointment 
alone  is  a  suflicient  bar  to  the  claim  of  Dower,  and  the  uses  should  be 
framed  accordingly. 

Another  modern  improvement  in  the  penning  of  *these  ^     ,  ., 

uses  is  the  omission  of  the  word  "signed,"  among  the  for-  ^  J 

malities  prescribed  for  the  execution  of  the  povver.(/^)  The  old  forms 
used  generally  to  run  ''signed,  sealed,  and  delivered  in  the  presence  of, 
and  attested  by  two  or  more  credible  witnesses,"  The  reason  of  dis- 
carding this  word  is  to  betound  in  the  cases  which  have  determined  that 
to  the  valid  execution  of  a  power  so  penned,  it  is  necessary  that  the 
fact  oi  signature  should  be  attested  by  the  witnesscs,(/)  while  tlie  conj- 
mon  form  of  attestation  merely  expresses  that  the  deed  was  •'  sealed  and 
delivered." 

In  point  of  consistency,  an  ultimate  limitation  to  the  heirs  and  assigns 
of  the  purchaser  seems  preferable  to  a  limitation  to  the  purchaser,  his 
heirs  and  assigns;  and  in  legal  effect  it  is  equally  unobjectionable,  the 
limitation  to  the  heirs  being  vested  in  the  purchaser  by  force  of  the  rule 
in  Shelley's  case,  it  appears,  however,  that  the  limitation  to  the  pur- 
chaser, his  heirs  and  assigns,  was  adopted  in  practice  to  meet  the  doubts 
of  ignorant  practitioners,  who  supposed  the  limitation  to  the  heirs  to  give 
them  an  estate  by  purchase. (A") 

Of  late  years,  it  has  been  a  growing  practice  in  conveying  lands  to 
uses  to  prevent  Dower,  to  give  the  seisin  to  the  purchaser,  and  not  to  the 
trustee.  The  grant  is  therefore  made  to  the  purchaser,  habendum  to  the 
purchaser  and  his  heirs,  to  the  use  *of  such  persons,  &c,  as  -  ^^  .. 
he  shall  appoint,  &c.     This  practice  has  some  advantages,  '-  -^ 

It  saves  the  insertion  of  the  nominal  consideration  paid  by  the  trustee. 


{h)  It  is  to  be  req^etted,  that  this  word  is  still  retainnl  in  the  collection  of  printed  prece- 
dents now  most  generally  in  use  in  the  olfices  of  ottnrnics.     fc^ce  I  Bart.  I'rec.  5*7. 
(i)   See  these  cases  discussed  in  iSiigd.  on  I'ow.  2i)l. 
(t)  See  Mr.  Sugden's  note  to  Gilb.  on  Uses,  3d  edit.  p.  324, 

Vol.  XI.— 2  E 


42  PARK  ON  DOWER. 

and  of  the  tormal  clause  in  the  witnessing  part,  "  on  the  nomination  of 
the  said  (purchaser),  testified,"  &c.;  and  it  substitutes  the  purchaser  for 
his  trustee  in  the  lease  for  a  year,  thereby  giving  the  lease  and  release 
greater  identity.  But,  the  main  reason  of  its  introduction  is,  that  the 
authorities  all  agree  that  the  deeds  do  not  appertain  to  cestui  que  use, 
but  to  the  feoffees  by  the  common  law,  and  the  statute  does  not  transfer 
them  to  him,(/)  which  is  the  ground  that  a  cestui  que  use  is  allowed  to 
plead  the  tleed  without  profert. 

On  the  other  hand,  it  is  possible  to  contemplate  cases  in  which  the  old 
practice  of  giving  the  seisin  to  the  trustee  may  have  its  advantages;  as  if 
the  uses  should  fail  of  effect  as  legal  estates  (which  not  unfrequently 
happens,)  by  reason  of  the  conveyance  operating  as  the  appointment  of 
an  use,  and  giving  the  legal  estate  to  the  trustee  to  uses,  instead  of  to  the 

*Qi      1  '^^^^  declared  upon  his  seisin. (???)     Here,  if  the  ^purchaser 
«-  -^  himself  be  the  releasee,  he  will  have  the  legal  fee,  and  bene- 

ficial ownership,  and  his  wife  will  consequently  be  dowable;  while  if 
the  seisin  had,  in  terms,  been  given  to  the  trustee,  the  legal  estate  in  him 
would  have  prevented  theattachmentof  Dower,  although  the  uses  should 
have  failed.  The  practice  has  also  the  disadvantage  of  being  liable  to 
mislead  unskilful  practitioners,  when  the  intervening  limitation  to  the 
trustee  for  the  life  of  the  purchaser  is  omitted,  as  is  sometimes  done 
when  great  brevity  is  an  object,  and  the  estate  is  conveyed  to  such  uses 
as  the  purchaser  shall  appoint,  and  subject  thereto  to  himself  m  fee.  In 
this  case,  if  the  seisin  was  given  to  the  purchaser  instead  of  to  a  trustee, 
the  deed  would  operate  wholly  by  the  common  law,  and  the  power  would 
be  nugatory.(?i)     The  wife  would  consequently  be  dowable. 

Under  the  common  form  of  uses  to  prevent  Dower,  the  owner  may, 
by  an  appointment  in  exercise  of  his  power,  at  once  defeat  the  estates 
limited  to  himself  and  his  trustee,  and  confer  the  entire  fee  upon  the 
person  in  whose  favour  the  appointment  is  made.  It  is,  however,  the 
constant  practice  for  a  purchaser  to  take  a  conveyance  under  the  owner- 
*Q9  1  ^^'^P  ^^  ^^^^  ^^  ^^  appointment,(o)  and  this  practice  *pro- 
L  -'  ceeds  not  merely  upon  an  adherence  to  form,  or  from  abun- 

dant caution,  but  upon  the  ground  that  the  power,  being  a  power  appen- 
dant, may  have  been  suppended  or  destroyed  by  some  act  unknown  to 
the  purchaser.  But  where  a  power  of  appointment  was  effectually  crea- 
ted by  the  deed  conveying  the  lands  to  the  vendor,  many  conveyancers 
of  eminence  discourage  as  much  as  possible  the  practice  of  making  the 

(I)  See  Whitfield  v.  Faussct,  1  Ves.  S.  394. 

(m)  The  miscarriage  alluded  to  arises  in  cases  where  the  vendor  is  seised  under  uses  to 
prevent  dower,  and  upon  a  conveyance  to  a  purchaser,  the  appointment  is  made  to  the  pur- 
chaser or  his  trustee  in  fee,  to  the  uses  thereinafter  declared,  instead  of  being  immediately 
to  the  uses,  &c.  As  the  appointment  confers  an  use,  the  consequence  of  the  doctrine  that 
there  cannot  be  an  use  upon  an  use  is,  that  the  uses  to  prevent  dower  subsequently  declared 
are  mere  trusts,'so  that  if  the  purchaser  is  the  releasee,  be  takes  the  whole  legal  and  equitable 
interest.  It  has  sometimes  happened  in  practice,  that  this  error  has  occurred  on  two  suc- 
cessive sales  of  the  same  property.  Now  on  the  second  sale,  the  wife  would  not  be  dowable, 
for  the  former  conveyance  having  conferred  no  poviier  of  appointing  an  use,  the  subsequent 
transaction,  although  in  form  containing  an  appointment,  operates  merely  as  a  lease  and 
release  to  uses. 

(n)  See  Goodill  v.  Brigham,  1  Bos.  and  Pul.  192. 

(o)  The  writer  has  known  instances  in  country  practice,  and  where  brevity  was  an  object, 
that  the  conveyance  has  been  taken  by  an  appointment  alone,  but  he  apprehends  them  to  be 
extremely  rare. 


OF  CONVEYING  LANDS  SO  AS  TO  PRKVENT  DOWER.         43 

trustee  a  partj'  to  the  conveyance  to  the  purchaser;  and  prohably  in  the 
greater  number  of  cases,  ])ersons  preparinsi;  drafts  on  behalf  of  purchasers 
uniformly  omit  the  trustee.  In  point  of  convenience  it  is  certainly 
highly  dcsiraljle  that  this  ])ractice  siiould  he  uniformly  established,  as,  in 
transactions  so  multifarious  as  purchases  and  mortgages  are  at  this  day, 
the  aggregate  expense  and  trouble  of  procuring  the  concurrence  of  the 
trustees  to  prevent  Dower,  or  their  representatives,  is  a  matter  of  no 
small  consideration.  But  it  sometimes  happens  that  a  cautious  purchaser 
insists  u))on  his  right  to  have  the  trustee  made  a  party,  and  it  lias  been 
made  a  subject  of  discussion  how  far  this  reciuisition  is  sustainable.  In 
a  case  which  occurred  many  years  since,  lands  were  limited  to  such 
persons,  &.c.  as  A.  should  appoint;  and  in  default  of,  and  until  such  ap- 
pointment, to  the  said  A.  for  life,  and  in  case  E.,  the  wife  of  the  said  A., 
should  survive  him,  then  to  li.  and  his  heirs  during  the  life  of  the  wife, 
in  trust  for  A.,  his  heirs,  and  assigns,  and  to  prevent  Dower,  and  after 
the  death  of  the  survivor  of  A,  and  his  wife,  remainder  to  the  heirs  and 
assigns  of  the  said  A.  for  ever.  Upon  a  subsequent  sale  by  A.,  two 
professional  gentlemen  of  great  respectability  were  of  *opin-  j-  ^  _  -, 
ion  that  the  concurrence  of  the  trustee  was  not  necessary.  ^  J 

Their  reasons  were  as  follows: 

"The  conveyance  is  by  way  of  use  executed  in  A.  for  life,  with  pow- 
er to  dispose  of  the  fee.  No  estate  or  interest  can  vest  in  B.  till  the 
contingency  should  happen  of  A.'s  dying  without  making  an  appoint- 
ment; and  as  this  very  conveyance  to  the  purchaser  (when  made  as  from 
A.  alonej  is  an  appointment,  after  it  is  executed;  the  contingency  can 
never  happen.  B.  having  therefore  no  interest  in  the  premises,  either 
in  law  or  equity  at  present,  nor  any  possibility  of  having  any  after  A. 
shall  have  made  such  conveyance,  I  conceive  he  is  not  a  necessary  party 
to  join  in  the  conveyance  with  A.  to  a  purchaser. 

Nov.  11,  1748.  "Hu.  Marriott." 

"I  think,  that  as  the  power  is  a  plain  simple  power,  and  is  by  the 
conveyance  fully  executed,  that  B.  can  have  no  interest;  and  therefore 
it  is  not  necessary  to  make  him  a  party. 

Nov.  21,  1748.  "R.  WiLBRAHAM." 

It  must  be  admitted  that  neither  of  these  opinions  embraced  the  real 
points  of  the  case.  The  following  opinion  was  afterwards  given  by 
Mr.  Booth: 

"  If  the  uses  had  been  to  A.  for  life,  then  to  such  persons  and  for  such 
estates  as  he  should  appoint,  and  then  the  words  had  been  '  in  default  oi 
such  appointment  *to  B,  during  the  life  of  the  wife,'  or  for  ^  ^,„.  -, 
any  other  greater  estate,  I  conceive  it  is  plain  from  Leonard  '-  -' 

Lovie's  case,  10  Co.  78,  and  Sir  Edward  Clere's  case,  G  Co.  68,  the  use 
to  B.  would  have  been  contingent,  and  the  fee  might  be  then  in  abey- 
ance, nobody  being  appointed  to  take  the  fee  or  remainder  but  on  the 
contingency  of  A.'s  making  no  aj)pointment.  But  in  the  present  case 
the  uses  are,  in  the  first  instance,  to  such  persons  and  for  such  estates  as 
A.  shall  by  deed  or  will  appoint;  and  then  the  words  arc  and  in  de- 
fault of  and  until  such  appointment,  &c.  to  ihe  use  of  A.  for  life;  and 
in  case  his  wife  survives  him,  then  after  A.'s  death  to  B.  and  his  heirs 
during  the  life  of  the  wife;  remainder  over  in  fee.     Here  the  uses  to  A. 


44  PARK  ON  DOWER. 

and  R.  cannot  be  contingent;  first,  because  then  the  freehold  would  be 
in  abeyance,  which  the  law  will  not  allow;  secondly,  because  the  deed 
expressly  vests  the  freehold  and  inheritance  in  the  respective  takers 
immediately  by  express  limitation;  for  the  words  are,  until  such  ap- 
pointment shall  be  made,  to  the  use  of,  &c.  so  that  in  the  interim  the  use 
vests  in  A.  and  the  remainder  over,  until  he  makes  an  appointment, 
leaving  an  opening  for  the  interposition  of  the  uses  which  are  to  arise 
under  any  appointment  by  A.  in  virtue  of  his  power,  whenever  that 
shall  be,  as  in  Lewis  Bowles's  case,  11  Co. 

"  And  this  case  is  the  same  as  if  the  uses  had  been  expressed  thus. — 
Until  A.  shall  make  an  appointment,  in  virtue  of  his  power  after  men- 
tioned, to  A.  for  life,  remainder  to  B.  and  his  heirs  'pur  auter  vie,  the 
remainder  or  reversion  to  A.  in  fee;  provided  that  after  A.  shall  make 
^„-  -,  an  appointment  by  *deed  or  will,  the  releasees  shall  stand 
L  -'^  J  [^seised]  to  the  use  of  such  persons  and  for  such  estates  as  A. 
shall  in  such  deed  limit  or  appoint.  And  this  is  the  case  of  every  mar- 
riage settlement — '  Until  the  marriage  to  J.  S.  in  fee,  and  after  to  uses 
for  the  benefit  of  the  husband  and  wife,  and  their  issue.'  It  is  said, 
that  notwithstanding  this  reasoning  may  be  right  with  respect  to  the 
estate  limited  to  A.  which  may  be  a  vested  use,  yet  that  it  cannot  be  so 
with  respect  to  B.  whose  estate  is  limited  upon  a  contingency,  viz.  if  C. 
survive  her  husband.  I  answer,  that  these  words  cannot  make  B.'s 
estate  contingent,  since  this  contingency  must  be  necessarily  implied,  if 
you  give  him  an  immediate  vested  remainder  during  the  wife's  life; 
and  if  this  were  not  so,  every  remainder-man  for  life,  after  an  estate  pre- 
viously limited  to  another  for  life,  would  take  by  way  of  contingent  re- 
mainder. 

"•  It  only  remains  for  me  to  say,  that  all  I  have  said  tends  to  shew 
there  is  an  actual  estate  and  interest  vested  in  B.  as  well  as  in  A.  and 
that  therefore  B.  is  a  necessary  party  to  join  in  a  conveyance  to  the 
purchaser. 

"  And  although  it  be  true,  that  if  A.'s  power  remains  entire,  untouched, 
unextinguished,  or  unsuspended,  then  the  use  may  well  enough  arise  to 
the  purchaser;  yet  I  may  venture  to  affirm  I  never  saw  a  deed  settled 
with  good  advice  but  what  not  only  contained  an  appointment  in  virtue 
of  the  power,  but  also  a  grant  by  way  of  conveying  the  estate  and  interest 
of  the  vendor,  and  all  claiming  under  or  in  trust  for  him.  And  if  this 
*0R  1  ^^^''S  i^ot  s°j  many  of  *the  most  operative  words  and  clauses 
L  -I   would  be  left  out  in  all  conveyances. 

March  18, 1748.  "  J.  Booth." 

Mr.  Marriott,  counsel  for  the  vendor,  and  Mr.  Booth,  counsel  for  the 
purchaser,  still  differing  in  opinion,  they  agreed  to  be  determined  by 
Mr.  Filmer,  who  gave  the  following  opinion: — 

"  The  limitation  to  B.  and  his  heirs  during  the  wife's  life  being  to 
prevent  her  title  to  Dower,  I  apprehended,  that  B.  is  only  a  trustee  for 
A.  the  husband,  and  that  the  wife  has  no  interest.  If  so,  then  if  the  pur- 
chaser requires  A.  not  only  to  limit  and  appoint  the  estate  by  virtue  of 
his  power,  but  also  to  convey  the  remainder  or  reversion  in  fee  (which 
1  think  is  reasonable  he  should  do,  lest  he  may  have  done  any  act  to 
extinguish  his  power,)  I  see  no  inconvenience  can  happen  to  B.  if  he 
should  join  in  the  conveyance  by  the  direction  of  A.  if  the  purchaser 


OF  CONVEYING  LANDS  SO  AS  TO  PREVENT  DOWER.         45 

requires  him  so  to  do;  though  1  cannot  say  B.'s  joining  will  much  mend 
the  title,  because  li.'s  remainder  seems  to  be  a  contiiij^ent  remainder, 
and  not  vested;  and  consequently  lie  has  no  estate  in  him  to  convey. 

"Bev.  Kilmer." 

"  U])on  further  consideration  of  this  case  I  am  inclined  to  think,  that, 
notwithstanding  the  contingent  words,  the  remainder  to  B.  is  a  vested 
remainder;  because  the  contingency  must  happen  upon  the  determination 
*of  the  particular  estate  on  the  death  of  A. ;  and  therefore,  ^  ,»._  , 
for  the  reasons  before  mentioned,  I  think  B.  should  join  in  L  -• 

the  conveyance  with  A. 

^^jjril  10,  1749.  «Bev.  Filmer."(/)) 

In  consequence  of  this  opinion  the  trustee  was  made  a  party.  The 
case  certainly  was  not  treated  with  particular  success  by  the  gentlemen 
who  advisctl  on  the  part  of  the  vendor.  Mr.  Marriott's  opinion  that  the 
limitation  to  the  trustee  was  contingent  upon  A.'s  dying  without  having 
appointed,  is  clearly  not  law  at  this  day,  and  therefore  can  have  no  in- 
fluence in  the  discussion  of  the  point.  The  strict  question  is  whether 
a  purchaser  objecting  to  the  title  under  an  apj)ointmcnt  alone,  is  or  is 
not  bound  to  show  that  the  power  is  suspended  or  extinguished.  If  he 
is  entitled  strict issimi  juris  to  any  conveyance  at  all,  he  would  seem  to 
be  entitled  to  the  concurrence  of  all  persons  who  have  an  interest  to 
convey. 

And  although  the  case  of  a  vendor  himself  refusing  to  do  more  than 
appoint,  would  certainly  be  received  by  the  courts  with  a  very  difl'ercnt 
feeling,  both  on  account  of  its  unreasonableness,  and  its  hostility  to 
uniform  practice,  yet  if  a  purchaser  has  a  right  to  a  conveyance  from  a 
person  having  one  j)ortion  of  the  legal  estate  subject  to  the  power,  it  is 
diHicult  to  show  why  he  has  not  also  a  right  to  a  conveyance  from  a 
person  having  another  portion  of  that  estate,  subject  to  the  same  power. 

*There  arc  certainly  cases  in  which  a  purchaser  would  be  ^      ^ 
compelled  to  take  a  title  solely  under  the  exercise  of  a  power,  L  J 

unless  that  power  could  be  impeached,  and  in  which  no  one  ever  thinks 
of  making  the  objection  in  practice  that  there  is  an  ajjpointment  only, 
and  not  a  conveyance.  The  cases  of  titles  under  powers  of  sale  and  ex- 
change, or  powers  of  revocation  and  new  appointment,  where  the  estate 
subjected  to  the  power  is  limited  in  strict  settlement,  furnish  examples 
of  this.  These  cases  however  atford  the  distinctions,  either  that  a  con- 
veyance cfuuiot  be  had  under  the  ownership,  or  that  such  conveyance 
will  not  be  valid  without  the  expense  of  a  fine  or  recovery.  The  author 
is  not  aware  of  any  case  which  has  decided  whether  a  ])urchaser  under 
a  title  so  circumstanced  could  refuse  to  execute  his  contract  without  a 
conveyance,  upon  olfering  to  pay  the  expense  of  a  recovery.  Another 
examjjle  is  to  be  found  in  the  case  of  a  power  of  sale  contained  in  a 
mortgage.  It  has  been  decided  by  Lord  Eldon,  that  it  is  no  objection 
to  the  title  that  the  mortgagor  will  not  join  in  conveying  to  a  pur- 
chaser.((/)  In  this  case,  however,  the  danger  of  the  power  being  sus- 
pended or  extinguished  was  too  remote  to  enter  into  consideration,  and 

(p)  2  Ca.  and  Op.  29.  *■ 

((])  Clay  V.  Sharpe,  Sugd.  Vend.  Appx.  No.  14,  and  soc  Corder  v.  Morgan,  18  Ves.  344. 

2   E   3 


46  PARK  ON  DOWER. 

the  case  was  discussed  merely  with  a  view  to  the  supposed  equity  of  the 
mortgagor  to  control  the  sale. 

In  the  absence  of  any  authority  distinctly  applicable,  the  impression 
of  the  writer  is  that,  strictly  speaking,  a  purchaser  is  entitled  to  the 
concurrence  *of  the  trustee  in  every  case  in  which  that  trustee 
1^  *^^  J  is  sui  juris,  and  can  convey  without  the  expense  of  a  fine, 
or  an  order  of  the  Court  of  Chancery;  but  if  the  trustee  is  dead,  and  his 
heir  is  an  infant,(/')  or  a  married  woman,  he  apprehends  that  a  purchaser 
insisting  upon  their  concurrence,  would  be  required  to  show  that  the 
power  was  not  exerciseable,  or  at  least  that  a  title  under  it  was  open  to 
be  impeached  upon  some  specific  ground. 


[  *100  ]  *CHAPTER  VI. 

Of  Titles  of  Dower  in  the  wives  of  Trustees  and  Mortgagees, 
and  of  equitable  relief  against  the  same. 

Where  the  husband  has  the  legal  estate  in  fee  of  lands,  as  a  trustee 
for  another  person,  as  courts  of  law  connot  take  notice  of  the  trust,  the 
wife  might  at  law  successfully  prosecute  her  title  of  Dower.  So  where 
the  husband  is  a  mortgagee  in  fee,  after  condition  broken,  the  wife 
would,  at  law,  recover  Dower,  upon  proving  the  legal  seisin  of  her  hus- 
band under  the  mortgage  deed;  and  the  estate  of  the  mortgagee  having 
once  become  absolute  by  breach  of  condition,  no  subsequent  acceptance 
of  the  mortgage  money,  or  reconveyance  of  the  lands,  by  the  mortgagee, 
could  defeat  the  wife's  legal  WHq  of  Dower.(«)  Hence  it  was  the  an- 
cient practice,  in  mortgages,  to  join  another  person  with  the  mortgagee 
in  the  conveyance,  to  avoid  the  attachment  of  the  legal  title  of  Dower. 
So  if  the  husband  had  the  estate  upon  condition  that  he  should  enfeoff 
another,  and  he  performed  the  condition,  the  feofiee  would,  at  law,  take 

^  ^  subject  to  the  Dower  of  the  wife;(6)  the  *feofFee  being  in  by 

t  ^^^  ^  the  husband,  and  not  by  title  paramount;  and  accordingly  in 
Brooke's  Abridgment  there  is  a  "  Mem.  That  in  feoff'ments  to  make 
estate  over  or  to  re-enfeoff  the  feoffor,  this  shall  be  made  to  a  man  sole, 
or  to  a  chaplain  who  has  no  feme,  for  if  it  be  to  a  man  who  has  a  feme, 
and  she  survives,  she  will  or  may  have  Dower."(c) 

In  modern  practice  it  is  uniformly  considered  that  the  wife,  whether 
of  a  mortgagee  or  trustee,  who  should  establish  her  title  of  Dower  at 
law,  would"  in  equity  be  subject  to  the  same  trust  or  redemption  as  her 
husband;  and  consequently  that  a  court  of  equity  would  restrain  the 
widow  of  a  trustee  or  mortgagee  from  prosecuting  her  legal  title  of  Dow- 

(r)  To  avoid  this  inconvenience,  some  gentlemen  limit  the  estate  to  the  trustee,  his  ex- 
ecutors and  administrators.     See  Sugden  on  Pov^ers,  187,  note. 

(a)  Bro.  Dow.  pi.  11,  (cites  42  E.  3.  1.)   Vin.  Abr.  Dow.  (G.  2.)  pi.  5.  Perk.  sec.  392. 

(b)  28  Ass.  4.  Bro.  Dow.  62.  1  Roll.  678,  1.  36.  Litt.  sec.  357.  It  is  therefore  said  that 
if  a  man  sole  be  enfeoffed  upon  condition  to  enfeoff  another,  and  before  he  has  performed 
tlie  conoition,  he  takes  a  wife,  the  feoffor  may  enter  for  condition  broken,  because,  says  Lit- 
tleton, "the  tenements  be  put  in  another  plight  than  they  were  at  the  time  of  the  feoffment 
upon  condition,  for  that  then  no  such  wife  was  dowable,"  &c.  Litt.  sec.  357. 

(cj  Bro.  Assurances,  pi.  3. 


OP  DOWER  AS  TO  TRUSTEES  AND  MORTGAGEES.  47 

er,  where  the  husband  had  been  redeemed,  or  had  conveyed  the  legal  es- 
tate at  the  direction  of  the  cestui  (jiie  trust. 

It  was  never  doubted  tbat  the  widow  of  a  mortgagee  would  be  subject 
to  redemption ;(^)  the  equity  of  a  mortgagor  extending  against  persons 
coming  in  by  every  species  of  title;  but  the  old  books  diflered  upon  the 
question  whether  a  dowress  should  l)e  bound  by  a  mere  trust. 

On  this  pomt  some  of  them  made  a  distinction  *between  ^  *ino  i 
Dower  and  Curtesy,   holding  that  tenant  by  the  Curtesy  ^  J 

being  in  in  'thc/;o.y/,  could  not  be  seised  to  an  use  [i.  e.  trust];  while  te- 
nant in  Dower,  being  in  in  \\\q. per,  might;  for  she  continued  the  estate 
of  her  husband,  and  under  the  same  trusts  and  agreements.(e)  In  ano- 
ther place  it  is  remarked,  that  a  tenant  by  the  Curtesy  claims  by  the 
general  law  of  the  kingdom,  while  a  tenant  in  Dower  claims  by  the 
marriage  agreement,  and  a  private  contract  is  the  origin  of  her  title;(y) 
while  in  a  subsequent  page  of  the  same  book  it  is  said  tenant  in  Dower, 
as  well  as  tenant  by  the  Curtesy,  "cannot  be  seised  to  uses  [trusts]  be- 
cause they  come  to  those  estates  by  the  disposition  of  law,  for  the  ad- 
vancement and  encouragement  of  matrimony;  and  those  estates  are  given 
them  for  their  own  maintenance,  and  are  consequently  exclusive  of  all 
other  uses  for  the  advantage  of  other  people." (.if) 

The  writer  apprehends  the  correct  mode  of  stating  the  point  was  that 
adopted  by  Brooke,  J.  in  a  case  stated  in  his  abridgment,(A)  where  he 
observed  that  the  feme  of  a  feoffee  to  uses  [before  the  statute]  who  was 
endowed  at  the  common  law,  should  be  seised  to  her  own  use,  in  opposi- 
tion to  a  feme  endowed  ex  assensu  patris  or  ad  osthim  ecchsix;  for 
the  latter  were  in  by  the  feoffee,  while  the  former  was  in  in  ^  -^ioq  i 
i\\G  per,  by  the  baron,  and  yet  by  the  law,  and  *without  ^  -" 

the  act  of  the  baron.  It  was  well  observed  also  by  Serjeant  Nudigate 
in  tlie  same  case,  that  the  estate  of  tenant  in  Dower  is  made  by  the  law, 
notwithstanding  that  she  is  adjudged  in  by  the  baron,  for  yet  this  is  by 
the  law,  and  whether  the  baron  will  or  not. 

In  the  case  of  Nash  v.  Preston(/)  (6  Car.  I.)  a  person  seised  in  fee,  by 
indenture  enrolled,  bargained  and  sold  to  another  in  fee,  in  consideration 
of  120/.  paid,  and  that  the  bargainee  was  to  re-demise  it  to  him  and  his 
wife  for  their  lives,  and  with  a  condition  that  if  he  paid  the  120/.  at  the 
end  of  twenty  years  the  bargain  and  sale  should  be  void.  The  bar- 
gainee redeemed  tiie  land  accordingly,  and  upon  his  death,  his  wife 
brought  Dower  against  the  bargainor.  Upon  a  bill  in  equity  to  re- 
strain her  from  proceeding,  it  was  referred  to  Crokeand  Jones,  justices, 
to  consider  wliethcr  the  Dower  should  be  relieved  against:  "•  And  al- 
though they  conceived  it  to  be  against  equity,  and  the  agreement  of  the 
husband,  at  the  time  of  the  purcliase,  tliat  she  [the  widow]  should  have 
it  against  the  lessees,  for  it  was  intended  they  should  have  it  re-demised 
immediately  unto  them  as  soon  as  they  parted  with  it,  and  it  was  but  in 
the  nature  of  a  mortgage,  and  upon  a  mortgage,  if  land  be  redeemed, 
the  wife  of  the  mortgagee  shall  not  have  Dower,  and  if  a  husband  takes 
a  tine  sur  cognisance  de  droit  come  ceo  and  renders  arrear,  although  it 


(rf)  Cro.  Car.  190.  Hard.  466.  Arc;.  Ca.  t.   Hanlw.  400. 

\e)  Gilb.  Uses,  11,  172.     7  Co.  7«,  and  see  Hard.  4(59,  per  Plale,  C.  B. 

(/)  Gilb.  Uses,  11.  (j-)  lb.  171.     See  also  Bro.  Feoff,  al  Uses,  pi.  40. 

(A)  Bro.  Feoff,  al  Uses,  pi.  10.  (j)  Cro.  Car.  lUO. 


48  PARK  ON  DOWER. 

,   was  once  the  husl)and's,  yet  his  wife  shall  not  have  Dower, 
[      104    J  ^^^  j^  jg  j^  j^-j^  ,^^^^1  qjjI-  Qf  j^i^  ^ii«,sj  *unoJiatu,  and  by  one 

and  the  same  act;  yet  in  this  case  they  conceived  that  by  the  law  she 
was  to  have  Dower,  for  by  the  bargain  and  sale  the  land  was  vested  in 
the  husband,  and  thereby  his  wife  entitled  to  have  Dower;  and  when 
he  re-demised  it  upon  the  former  agreement,  yet  the  lessees  were  to 
receive  it  subject  to  this  title  of  Dower;  and  it  was  his  folly  that  he  did 
not  conjoin  another  with  the  bargainee,  as  it  was  the  ancient  course  in 
mortgages.  And  when  she  was  dowable  by  act  or  rule  in  law,  a  court 
of  equity  should  not  bar  her  to  claim  her  dower,  for  it  is  against  the  rule 
of  law  Where  no  fraud  or  covin  is  a  court  of  equity  will  not  relieve.^' 
And  upon  conference  with  the  other  justices,  who  were  of  the  same 
opinion,  Croke  and  Jones  certified  to  the  Court  of  Chancery  that  the 
widow  of  the  bargainee  was  to  have  Dower,  and  that  a  court  of  equity 
ought  not  to  preclude  her  thereof 

The  reasoning  of  this  case  is  not  particularly  satisfactory.  There 
could  be  no  question  but  that  the  wife  was  dowable  at  law,  but  unless 
upon  the  ground  which  they  passed  over  unnoticed,  that  a  dowress  is 
not  affected  hy  trusts,  no  reason  appears  why  a  court  of  equity  should 
not  restrain  her.  As  to  jurisdiction,  a  court  of  equity  is  as  much  con- 
cerned with  cases  of  trust  as  with  cases  of  fraud. 

It  is  however  said  that  this  case  of  Nash  v.  Preston  was  cited  in 
Chancery,  11  July,  168S,  before  Jefferies,  chancellor,  in  a  case  between 
the  creditors  of  the  Earl  of  Pembroke  and  his  heir,  and  by  his  lordship, 

^  ^  ,  and  Lutwyche  and  Powell,  justices,  assisting,  and  by  the 
t  ^^^  -J  bar,  unanimously  declared  to  be  *against  equity,  and  the 
constant  course  of  Chan  eery.  (A;) 

So  in  Noel  v.  Jevon(/)  (1678,)  on  a  bill  brought  to  be  relieved  against 
the  defendant's  Dower,  it  appearing  to  the  Court  that  the  husband  was 
but  a  trustee,  the  relief  was  granted;  as  the  reporter  adds,  "contrary  to 
the  opinion  of  Nash  v.  Preston;  and  so  it  was  said  is  the  canstant  prac- 
tice of  the  Court  now."  And  in  Bevant  v.  Pope(m)  (1681)  a  copyhold 
was  granted  to  A.  in  trust  for  B.,  and  A.  died,  leaving  a  widow,  who  by 
the  custom  of  the  manor  was  entitled  to  her  widow's  estate.  The  ques- 
tion was,  whether  or  no  she  should  have  her  widow's  estate,  and  not  he 
liable  to  the  trust.  And  it  was  held  that  she  should  not,  no  more  than 
the  wife  of  a  trustee  shall  have  Dower,  for  the  widow's  estate  springs 
out  of  the  trust  estate  by  the  custom,  as  Dower  doth  by  the  common  law. 

In  the  modern  case  of  Hinton  v.  Hinton(7z)  it  was  also  said  by  Lord 
Hardwicke,  that  if  the  husband  was  seised  merely  as  a  trustee,  the  wife 
would  be  entitled  to  Dower  at  law,  but  the  Court  of  Chancery  would  not 
suffer  her  to  take  advantage  of  it,  because  it  would  be  taking  part  of 
that  estate  the  whole  of  which  was  in  another,  and  against  conscience. 
*infi  1  *The  explanation  of  the  obvious  inconsistency  between 
L  -I  the  modern  cases,  and  the  doctrine  of  Justice  Brooke  and 

Serjeant  Nudigate,  and  of  the  judges  in  Nash  v.  Preston,  appears  to  be 
that  the  substantial  equity  of  the  case  has  got  the  better  of  technical  ac- 
curacy and  consistency. 

(it)  Bacon's  Tracts,  37.  (0  2  Freem.  43,     See  also  2  Ves.  S.  632,  admitted, 

(w)   2  Freem.  71,  and  see  2  Ves.  S.  633,  ace. 

\n)  2  Ves.  S.  634.  See  also  1  Burr.  1 17,  that  the  wife  of  a  feoffee  to  be  tenant  to  the 
praecipe  is  not  dowable  :  [that  is,  in  equity.] 


OP  DOWER  AS  TO  TRUSTEES  AND  MORTGAGEES.  49 

Little  doubt  seems  to  be  entertained  in  practice,  that,  at  this  day,  the 
Court  would  p;ivc  costs  against  the  v/ife  of  a  trustee  prosecuting;  her 
Dower,  both  at  law  in  equity.  On  this  account  a  line  is  never  rc'(iuired 
in  practice,  on  a  conveyance  by  a  trustee,  or  mortgagee,  who  happens  to 
be  married. 

So  where  a  man  contracts  for  sale  of  his  land,  and  afterwards,  l)efore 
conveyance  made,  marries,  as  he  is  a  trustee  in  equity  for  the  purchaser, 
it  would  seem  that  no  fine  is  necessary  to  complete  the  title.  The  point 
was  in  effect  decided  in  Hinton  v.  riinton,(o)  on  a  case  of  freel)ench, 
but  tlic  circumstances  of  which  brought  it  to  a  level  with  the  case  now 
put  concerning  Dower. 

If  huids  of  inheritance  are  purchased  with  purtnership  property,  and 
conveyed  to  one  partner  only,  ])rimd  Jacie  lie  is  a  trustee  for  the  part- 
nership, and  upon  a  dissolution,  the  lands  would  be  distributable  among 
the  partners  as  partnership  property ;(;;)  but  as  the  partner  in  whose 
name  the  conveyance  was  taken  has  the  legal  estate  coupled  with  the 
beneficial  *ownership  in  his  own  share,  and  as  partners  are  ^  ^^^-.^  -i 
tenants  in  common  in  equity  of  real  estates  i)Urchased  for  the  '  ' 

purposes  of  trade,  it  is  npprehendcd  that  his  wife  is  entitled  to  Dower  of 
this  share.  But  if  there  is  an  agreement  that  on  the  dissolution  of  the 
partnership,  the  lands  shall  be  valued  and  sold,  it  was  the  opinion  of 
Lord  Tluirlow,  that  the  lands  must  be  considered  as  personal  estate,  and 
distributable  as  such,((/) 

The  implied  trust  for  the  partnership  may,  however,  be  rebutted  by 
evidence  that  the  agreement  for  the  purchase  of  the  lands  was  specific, 
namely,  that  they  should  be  the  separate  j)roperty  of  the  partner  to  whom 
they  were  conveyed,  and  that  he  should  be  a  debtor  to  the  partnership 
for  the  sum  paid  for  the  j)urchase.  Upon  an  agreement  of  this  natui'c, 
it  was  observed  by  Lord  Loughborough  that  the  lands  could  never  be 
specifically  divided,  as  if  they  were  part  of  the  partnership  stock,  but 
when  they  come  to  settle,  these  lands  are  one  partner's,  and  he  is  a  debt- 
or for  so  much  money.  In  this  case,  therefore,  his  lordship  determined 
that  the  wife  was  dovvable  of  the  whole.(7') 

As  a  qualification  to  these  observations  it  should  be  remarked,  that  if 
a  court  of  equity  sees  reason  to  believe  that  the  j)crson  alleged  to  be  a 
trustee  was  in  point  of  fact  the  bo)id  fide  owner  of  the  estate,  and  that 
the  declaration  of  trust  which  is  produced  '^was  nothing  more  ^  #in«;  "i 
than  a  fraudulent  contrivance  to  defeat  creditors,  or  others,   ^  J 

it  will  not  permit  this  trust  to  be  set  up  as  a  bar  to  Dower  against  the 
wife  of  such  bond  fide  owner.  This  at  least  seems  to  be  the  proposition 
to  be  gathered  from  Bateman  v.  Bateman.(5)  In  that  case  a  father  pur- 
chased land  ill  the  name  of  his  cklest  son,  who  was  jiut  in  possession, 
and  afterwards  falling  sick,  was  procured  to  execute  a  declaration  oi 
trust  for  his  father,  but  afterwards  recovering,  continued  in  possession 
and  married,  and  dying  without  issue,  his  brother  and  heir  conveyed  to 
the  father.  The  widow  of  the  eldest  son  having  brought  a  writ  of 
Dower,  the  father  filed  his  bill  in  Chancery  to  be  relieved  against  it,  and 

(o)  2  Vcs.  S.  631,  638.  Ainbl.  277,  recognised  in  Hrowne  v.  Ruindle,  3  Ves.  256,  which 
see. 

ip)  Spo  Smith  v.  Smith,  5  Ves.  189. 

(7)  Thornton  v.  Dixon,  3  Bro.  C  C.  199.  (r)  Smith  v.  Smith,  5  Ves.  189. 

(s)  2  Vern.  436. 


50  PARK  ON  DOWER. 

obtained  a  decree  at  the  Rolls;  but  upon  appeal  Lord  Keeper  Wright 
dismissed  the  bill,  declaring  it  to  be  a  secret  and  fraudulent  deed  of  trust 
to  deceive  creditors  and  purchasers,  and  the  widow  was  declared  to  be 
at  liberty  to  prosecute  her  writ  of  Dower.  The  Lord  Keeper  must 
consequently  have  been  of  opinion  that  the  purchase  by  the  father  was 
intended  as  an  advancement  for  the  son,  and  that  his  name  was  not  used 
as  a  trustee  for  the  father,  and  that  under  the  circumstances,  the  subse- 
quent declaration  of  trust  did  not  prove  the  contrary,  or  raise  any 
trust  in  the  father^s favour,  but  was  merely  a  contrivance  for  purposes 
of  fraud,  having  no  operation  even  between  the  parties.  It  is  not  enough 
that  the  declaration  of  trust,  as  voluntary,  was  fraudulent  against  creditors 
^^„  -,  under  the  statute-law;  *if  good  as  against  the  party,  it  was 
L  -J  clearly  an  equitable  bar  to  Dower,  as  executed  before  mar- 

riage. The  doctrine  of  the  Lord  Keeper  must  therefore  have  gone 
further,  and  was  probably  founded  on  the  continuing  possession  of  the 
son  after  his  recovery. 


[    »iio    ]  ^CHAPTER  VII. 

0/  what  PROPERTY  ivhereof  the  husband  is  seised  the  wife  shall  be 
ENDOWED,  in  respect  to  the  nature  and  qualities  thereof. 

Assuming  the  circumstances  of  jnarriage  and  seisi7i  to  have  concur- 
red to  give  a  woman  a  title  of  Dower,  it  remains  to  inquire  on  what 
kind  of  property  of  which  the  husband  is  seised  that  title  will  attach. 

The  words  of  Littleton(a)  are,  "  Tenant  in  Dower  is  where  a  man  is 
seised  of  certain  lands  or  tenements:^  The  signification  of  the  word 
"lands"  is  well  known:(6)  but,  the  extent  of  the  word  "  tenements" 
has  frequently  been  made  the  subject  of  discussion,  in  consequence  of 
its  being  the  only  word  contained  in  the  statute  De  Donis.  From  the 
commentary  of  Lord  Coke  upon  the  14th  sect,  of  Littleton,  (c)  it  appears, 
that  to  constitute  a  tenement,  it  is  not  necessary  that  the  thing  itself  lie 
in  tenure;  it  is  sufficient  if  it  is  issuing  out  of,  or  concerning,  or  annexed 
to,  or  exerciseable  with,  corporeal  inheritances  which  may  be  holden. 
^  The  word  hereditaments  *is  properly  omitted  by  Littleton, 

L  -'for  there  may  be  hereditaments  which  do  not  in  any  degree 

savour  of  the  realty,  although  descendible  from  ancestor  to  heir,  and  of 
such  hereditaments  as  these  a  woman  is  not  dowable.  An  annuity  in 
fee  that  charges  only  the  person,  and  does  not  issue  out  of  any  lands  or 
tenements,  is  an  instance  of  this.((/)  And  although  it  were  originally 
gi-anted  as  a  rent  charge,  yet  if  the  grantee,  by  bringing  a  writ  of  annui- 
ty, elects  to  take  it  as  a  personal  annuity,  his  wife  will  not  be  dowable.(e) 
But  if,  before  any  election  by  the  husband,  he  dies,  and  his  wife  brings 
a  writ  of  Dower  against  the  heir,  he   cannot  say  in  bar  of  her  Dower 

(a)  Sect.  36. 

(6)  And  see  Co.  Litt.  4.  a.  In  Stoughton  v.  Leigh,  Sir  James  Mansfield  remarks  on  this 
passage,  that  Lord  Coke  says  not  a  word  to  explain  what  is  land,  or  what  is  a  tenement, 
thinking  the  import  of  those  terms  well  known  in  law.     1  Taunt.  409. 

(c)  Co.  Litt.  20.  a. ;  and  see  2  Ves.  J.  663. 

(J)  Perk.  sec.  347;  Co.  Litt.  32.  a.  (e)  PerL  sec.  273. 


OP  THE  KINDS  OF  PROPERTY"  SUBJECT  TO  DOWER.  51 

that  he  claims  the  same  as  an'annuity,  and  not  as  a  rent  charge,  for  he 
cannot  determine  his  election  by  claim,  but  by  suing  a  writ  of  annuity,(/) 

But  of  all  real  hereditaments,  unless  there  is  some  special  reason  to 
the  contrary,  a  woman  is  dovvablc,  whether  corporeal  or  incorporeal; 
as  of — 

A  Manor  ;(jg-) 

An  Advowson  in  gross,  or  appendant;(A) 

Tithes,  Pensions,  or  other  ecclesiastical  profits,  which  came  to  the 
crown  by  the  statutes  of  27  Hen.  VIII.  31  Hen.  VIII.  and  1  Ed.  Vl.(e) 

A  Rent  Service;  (k) 


*Rent-charge;(/) 


[    *112    ] 


Rent-seek;  (m) 
A  common  certain,  in  gross,  or  appendant;(n) 
Of  franchises,  parcel  of  an  honour;(o) 
Of  all  tenures  which  she  is  capable  of;(/?) 

So,  of  all  liberties  and  profits  savouring  of  the  realty,(5')  wherein  the 
husband  is  seised  of  an  estate  of  inheritance;  as, 
A  Piscary  ;(r) 
Offices,(5) 

As  the  office  of  a  bailiff,  or  parker;(/) 
The  office  of  the  marshalsea  of  the  King's  Bench ;(w) 


[     *113     ] 


^The  custody  of  the  gaol  of  Westminster  abbey  ;(z;) 

A  fair;(t^) 

A  market  ;(a^) 

A  dove-house;(3/) 

Courts,  fines,  heriots,  8ic.(z) 

A  mill;(a) 


(/)  Co.  Litt.  144.  b.  (g)  Bragg's  case,  Godb.  135;  Gouldsb.  37;  Cro.  4. 

(A)  F.  N.  B.  148,  150  (cites  1  E.  1.  Dow.  176  ;)  Cro.  Jac.  621;  Co.  Litt,  32.  a.;  Perk, 
sec.  342,  343. 

(t)  Co.  Litt.  159.  a.  32.  a. ;  Sty.  99.      (fc)  Perk.  sec.  345. 
[1)  Perk.  sec.  347.  (m)  Co.  Litt.  32.  a.  Perk.  sec.  347 

(n)  Perk.  sec.  342.  F.  N.  B.  148  ;  Thel.  Dig.  67.  1.  8.  c.  5.  sec.  15  (cites  T.  4  E.  3. 
146,)  but  in  dower  of  common  certain,  demandant  shall  not  be  endowed  unless  she  show 
the  certainty.     Godb.  21. 

(o)  Howard  v.  Cavendish,  Cro.  Jac.  622. 
(/.)  Style's  Pr.  Reg.  69.  (q)  F.  N.  13.  18,  148. 

(r)  Co.  Litt.  32.  a.  (cites  Bract.  98.  208  ;  Brit.  247 ;  Flet.  1.  5.  c.  23  ;  17  E.  2  ;  Dow. 
104,  163.) 

(s)  Style's  Pr.  Reg.  122;  Thel.  Dig.  67.  1.  8.  c.  5.  sec.  3.  (cites  12  E.  3.  Dow.  90,)  F. 
N.  B.  18,  149. 

(0  12  E.  3.  Dow.  90;  Co.  Litt.  32.  a. ;  F.  N.  B.  8.  (K)  marg.;  Perk.  sec.  342  ;  Gilb. 
Dow.  371.  The  author  of  The  Woman's  Lawyer  observes,  "an  ancient  keepership  of  a 
park  with  a  fee  belonging  to  it,  may  be  appointed  or  assigned  in  Dower ;  but  so  is  not  a 
keepership  newly  granted,  and  sans  fee,  which  is  a  charge  without  gain  or  utilitv."  p.  189. 
(m)  21  E.  3.  .57;  Co.  Litt.  32.  a.;  F.  N.  B.  8.  (K)  marg.  In  Hughes  on  Writs,  p.  192, 
it  is  said,  "  note  that  in  every  bailiwick  or  office  in  which  the  husband  hath  a  fee,  which 
bailiwick  or  ofRce  the  wife  may  by  herself  or  others  sufficiently  keep,  she  shall  have  dower 
of  it,  but  of  the  office  of  Steward  or  Marshal  of  England,  which  she  cannot  execute  by  her- 
self, she  shall  not  be  endowed." 

(v)  Co.  Litt.  32.  fl.;  Theloal.  Dig.  67.  lib.  viii.  cap.  v.  sec.  2. 

(w)  15  E.  3.  Uow.  81;  Co.  Lilt.  32.  a.;  F.  N.  B.  8  (K)  n. ;  Bro.  Ass.  pi.  471;  Fitzh. 
Sci.  Fa.  122;  Gilb.  Uses,  371. 

(x)  H.  12  E.  2.  Dow.  157;  Gilb.  Uses,  371;  F.  N.  B.  8  (K)  n. 

iy)  Co.  Litt.  32.  a.  (z)  Ibid. 

(a)  Perk.  sec.  342;  Gilb.  Uses,  371;  F.  N.  B.  8  (K)  a. 


52  PARK  ON  DOWER. 

It  is  said  by  Perkins,  that "  if  a  man  grant  unto  me  and  my  heirs  to 
take  yearly  out  of  his  meadow  three  loads  of  hay,  and  I  take  a  wife  and 
die,  my  wife  shall  have  Dower  thereof. "(6)  But  "if  a  man  grant  unto 
me  and  my  heirs  to  take  yearly  so  many  estovers  in  his  wood  in  Dale, 
as  I  and  my  heirs  will  burn  in  the  same  manor  of  Dale,  and  I  have  a 
wife  and  die,  my  wife  shall  not  have  Dower  of  the  estovers."(c) 

Upon  the  construction  of  some  of  the  inland  navigation  acts,  it  has 
been  decided  that  shares  in  those  navigations  are  real  estate,  and  subject 
to  the  incidents  of  real  estate.  So  also  it  is  held  with  regard  to  New 
J-  ^...  .,  River  shares,  (c^)  But  generally  speaking,  *acts  of  this  nature 
•-  -^  negative,  by  express  words,  the  quality  of  real  estate,  as  ap- 

plicable to  the  shares.  In  Buckeridge  v.  Ingram, (e)  it  was  made  a  ques- 
tion upon  the  Avon  Navigation  Act,(/)  whether,  if  the  shares  were 
real  property,  a  widow  was  entitled  to  Dower  out  of  them.  Lord 
Alvanley  was  clearly  of  opinion  upon  the  language  of  that  act,  that  the 
shares  were  not  only  real  estate,  but  that  they  were  tenements  of  which 
a  woman  is  dowable;  and  he  referred  to  the  old  authorities  as  to  a  mill, 
a  fair,  a  piscary,  &c.  observing,  "  there  can  be  nothing  more  like  the 
present  subject  than  the  latter,  which,  without  connexion  with  the  soil, 
is  the  right  of  fishing;  and  if  Dower  can  attach  upon  that,  it  is  strange 
if  this  is  not  equally  real  estate."(^) 

It  has  already  been  propounded,  that  a  woman  is  dowable  of  an  ad- 
vowson  appendant,  of  a  common  appendant,  and  of  other  thmgs  which 
usually  lie  in  appendancy.  It  should  however  be  understood  as  mean- 
ing nothing  more  than  that  she  is  dowable  of  such  things  as  are  append- 
ant by  reason  of  her  right  to  be  endowed  of  the  manor,  &c.  to  which 
they  are  appendant,  and  not  as  things  to  which  she  can  make  a  sub- 
r  *i  1  e  n  stantive  claim  of  Dower,  for  that  would  be  to  sever  the  ap- 
L  ^  pendancy.     And  this  qualification  is  ^material  to  be  borne 

in  mind,  since  many  things  wliich  are  usually  appendant,  as  franchises, 
&c.  are  considered  in  their  own  nature  indivisible,  and  that  consequent- 
ly a  woman  cannot  be  endowed  of  them  unless  she  is  endowed  of  the 
entirety  of  the  thing  to  which  they  are  appendant.  Thus,  a  woman  en- 
dowed of  the  third  part  of  a  manor  to  which  franchises  are  appendant, 
shall  not  have  the  third  part  of  the  franchises,  but,  if  she  is  endowed  of 
the  entire  manor,  in  allowance  of  her  Dower  in  all  the  lands,  &c.  of  the 
husband,  she  shall  have  the  franchises  as  appendant  to  the  manor.(A) 
This  subject  will  be  further  pursued  in  the  chapter  treating  on  assign- 
ment of  Dower. 

It  is  laid  down  by  Bracton,  that  a  woman  cannot  claim  a  thing  in 
Dower,  unless  she  may  use  and  enjoy  the  thing  of  which  she  is  dowable 
sine  vasto,  exilio,  et  destructione.{i)     In  Thynn  v.  Thynn,(A;)  in  error 

{b)  Perk.  sec.  343  (cites  M.  11  E.  3.  85  ;  M.  15  E.  81;  T.  4  E.  3.  32.) 

(c)  Perk.  sec.  341. 

{(1)  See  Drybutter  v.  Bartholomew,  2  P.  W.  127;  Swayne  v.  Fawkener,  Show.  P.  C. 
207;  and  see  2  Ves.  S.  182. 

(e)  2  Ves.  J.  fi52.  (/)   10  Ann.  Priv. 

(^)  2  Ves.  J.  664.  Under  the  act  in  question,  the  undertakers  were  empowered  to  make 
cuts  and  erections,  and  to  receive  certain  tolls,  payable  by  all  persons  and  goods  navigating 
that  part  of  the  river,  thereby  giving  them,  as  Lord  Alvanley  remarked,  "  a  right  in  and 
over  the  soil,  and  certain  real  rights  arising  in  and  out  of  the  soil.     lb.  663. 

(A)  Hughes  on  Writs,  192  (cites  3  E.  3.     Ita  Derby,  Dow.  103.) 

(z)  Hughes  on  Writs,  191  (cites  Bract.  316.  p.  1,  2.)  (fc)  Sty.  68. 


OF  THE  KirDS  OP  PROPERTY  SUBJECT  TO  DOWER.  53 

on  a  writ  of  Dower,  it  was  objected  among  other  things,  that  Dower 
was  (lemandcd  of  a  thing  not  dowable,  viz.  of  a  quarry  of  stones,  which 
would  be  to  the  destruction  of  the  inheritance;  and  that  indeed  it  was 
impossible,  for  a  quarry  of  stones  could  not  be  divided  by  metes  and 
bounds,  which  must  be,  if  she  could  endowed  of  it.  And  also  if  the 
mine  and  quarry  should  be  divided,  the  tenant  of  the  land  would  be 
prejudiced;  and  that  a  quarry  could  not  be  divided,  they  cited  Co.  Lilt. 
164.  On  the  other  side  it  was  replied,  that  a  feme  is  dowa-  ^  *,  i  p 
ble  *of  a  quarry,  and  tliat  it  might  l)e  divided  by  metes  and  L  '     J 

bounds,  for  it  might  be  divided  by  the  profits,  although  it  could  not  be 
divided  by  the  quantity  of  tlie  thing.(/)  No  judgment  appears  to  have 
been  given  on  this  point.  In  the  late  case  of  Stoughton  v.  Leigh, (/yj) 
it  became  necessary  to  decide  upon  the  rights  of  a  dowress  as  to  proper- 
ty of  this  nature.  In  that  case,  the  husband  was  the  owner  of  several 
mines  and  strata  of  lead  and  coal,  some  of  them  in  lands  of  which  he 
was  himself  seised  in  fee,  and  others  in  the  lands  of  other  persons,  and 
which  had  been  granted  to  him  in  fee  simple.(n)  Some  of  these  mines 
and  strata  had  been  opened  and  wrought,  and  others  not.  On  a  case 
sent  to  the  court  of  Common  Pleas,  the  judges  of  that  court  certified 
that  the  widow  was  dowable  of  all  her  husband's  mines  of  lead  and  coal, 
as  well  those  which  were  ih  his  own  landed  estates,  as  the  mines  and 
strata  of  lead,  or  lead  ore,  and  coal,  in  the  lands  of  other  persons,  which 
had  in  fact  been  open  and  wrought  before  his  death,  and  ^  ^  _  .. 
wherein  he  had  an  estate  of  *inhcritance,  and  that  her  right  '-  ^  '  J 
to  be  endowed  of  them  had  no  dependance  upon  the  subsequent  con- 
tinuance or  discontinuance  of  working  them,  either  by  the  husband  in 
his  life-time,  or  by  those  claiming  under  him  since  his  death. 

The  language  of  this  certificate  is  perhaps  open  to  some  observation. 
It  could  scarcely  be  intended  by  the  court  that  the  widow  was  dowable 
of  the  mines  in  her  husband's  own  lands  as  substantive  hereditaments. 
Those  mines  were  parcel  of  the  inheritance,  and  her  life-interest  in  the 
lands  themselves,  or  rather  in  her  third  part  of  them,  carried  with  it 
the  legal  right  to  the  benefit  of  such  of  the  mines  included  in  that  third 
part  as  were  opened.  That  this  was  all  the  court  meant  to  express  might 
be  gleaned  from  their  observations  upon  the  mode  in  which  the  assign- 
ment was  to  be  made  by  the  sheriff  of  the  husband's  own  lands.  "It 
was  not  absolutely  necessary  (they  remarked),  that  he  should  assign  to 
her  any  of  the  open  mines  themselves,  or  any  portions  of  them.  The 
third  part  in  value  which  he  should  assign  to  her  might  consist  wholly 
of  land  set  out  by  metes  and  bounds,  and  containing  none  of  the  open 
mines.  Or  he  might  include  any  of  the  mines  themselves  in  the  assign- 
ment to  the  widow,  describing  them  specifically,  if  the  particular  lands 
in  which  they  should  lie  should  not  also  be  assigned;  but  if  those  lands 


(/)  It  is  not  stated  in  the  report  that  the  quarry  was  in  the  husband's  own  lands,  but  thi« 
may  probably  be  gleaned  to  be  the  fact.  On  a  former  day  it  had  been  argued,  that  "here  is 
a  demand  of  such  things  whereof  dower  lies  not,  viz.  of  a  ijuirry  of  stones,  and  it  nppf.ars 
not  that  the  quarry  -vas  open  in  the  life  of  her  liushund;  and  if  it  were,  that  it  is  improper 
to  demand  it  by  the  name  of  a  quarry."  To  which  it  was  re])lied,  that  "  tiie  word  quarry  is 
a  good  word,  and  well  liuown  what  it  means,  for  (juarrera  is  au  old  well  known  Latin  word 
for  it ;  and  she  is  as  well  dowable  of  it  as  of  a  mine  of  coals,  and  it  shall  be  intended  to  be 
open  because  she  demands  it  by  the  name  of  a  quarry." 

(»n)  1  Taunt.  402.  (»)  So  at  least  it  was  taken  by  the  court. 

Vol.  XI.— 2  F 


54  PARK  ON  DOWER. 

should  be  included  in  the  assignment,  the  open  mines  within  them 
might,  but  were  not  necessarily  to  be  so  described,  being  part , of  the 
land  itself  which  was  assigned;  and  as  the  working  of  open  mines  was 
r  *iis  1  "°''  waste,  the  tenant  in  Dower  might  work  such  mines 
'-  -'   for  her  own  exclusive  ^profit.     Or  the  sheriff  might  divide 

the  enjoyment  and  perception  of  the  profits  of  any  of  the  particular 
mines  as  after  mentioned;"  i.  e.  by  directing  seperate  alternate  enjoyment 
for  short  periods. 

These  observations  seem  fully  to  admit  what  the  writer  apprehends 
to  be  without  doubt  the  real  state  of  the  law,  that  the  wife  is  dowable  of 
opened  mines  in  her  husband's  lands  as  parcel  of  the  inheritance,  and 
not  as  distinct  or  collateral  inheritances.  INIines  in  a  man's  own  lands 
are  clearly  so  far  from  being  distinct  inheritances,  that  they  are  merely 
a  mode  of  enjoyment.  The  right  to  the  soil  is  the  right  to  the  profits 
of  it,  subject  only  to  such  restrictions  as  the  law  has  imposed  upon  the 
owners  of  particular  estates  with  respect  to  the  mode  of  enjoying  those 
profits.  On  the  other  hand,  it  is  difficult  to  understand  how  tlie  admis- 
sion that  the  sheriff  might  assign  particular  mines  not  within  the  lands 
assigned  to  her,  is  to  be  rendered  consistent  with  this  view  of  the  law. 
If  the  wife  is  entitled  to  the  benefit  of  mines  in  her  husband's  lands, 
merely  in  respect  of  her  interest  in  the  particular  lands  under  which 
they  lie,  how  can  that  benefit  be  extended  to  mines  under  other  lands  of 
her  husband  to  which  she  is  a  stranger?  As  well  might  it  be  said  that 
the  sheriff  might  endow  her  of  a  clump  of  trees  in  lands  which  are  not 
included  in  the  assignment  of  her  Dower.  If  she  is  endowed  of  the 
land  itself  upon  which  the  trees  grow,  she  has  that  interest  in  the  trees 
which  the  law  allows  to  a  tenant  for  life,  but  if  the  land  is  not  assigned 
to  her,  she  cannot  be  substantively  endowed  of  the  trees.  The  mines 
P  *iiq  -1  being  equally  parcel  of  the  inheritance  as  the  *trees,  are  in 
'  -*  the  same  predicament.     These  considerations  will  probably 

account  for  the  circumstance  which  struck  the  court  with  some  surprise 
that  no  mention  was  made  of  mines  by  Lord  Coke  in  enumerating  the 
species  of  inheritance  of  which  a  woman  sliall  be  endowed. 

It  may  also  be  remarked,  that  if  the  mines  were  to  be  considered  in 
any  other  light  than  as  parcel  of  the  inheritance,  the  certificate  would 
appear  to  be  wrong  in  saying;  that  '•  it  was  not  of  actual  necessity  that 
the  sheriff  should  assign  to  her  any  of  the  open  mines  themselves,  or 
any  portions  of  them;"  for  the  law  seems  to  be  that  the  sheriff  is  bound 
to  assign  a  third  part  (either  in  possession  or  in  profit,)  of  each  species 
of  property  of  which  the  wife  is  dowable. (o) 

With  regard  to  the  mines  and  strata  under  the  lands  of  other  persons, 
the  subject  might  perhaps  have  merited  further  consideration.  Assum- 
ing the  law  to  be  that  an  interest  of  that  nature  though  in  itself  per- 
ishable, is  yet  capable  of  being  granted  in  fee,  it  may  be  made  a  question, 
if  a  woman  is  dowable  in  any  case  of  such  property,  how  the  circum- 
stance of  the  mines  being  opened  or  unopened  can  make  any  difference; 
the  analogy  wholly  failing  between  such  property,  and  mines  in  the 
lands  of  her  husband,  which  are  parcel  of  the  inheritance.  In  the  latter 
case,  her  right  to  work  opened  mines  arises  as  a  mode  of  enjoyment,  to 
which,  in  respect  of  her  interest  in  the  lands,  she  is  entitled;  while  the 

(o)  See  the  chapter  on  assignment  of  dower,  infra. 


OF  THE   KINDS  OF  PROPERTY  SUBJECT  TO  DOWER.  55 

denial  of  her  ri<fhl  lo  open  the  mines  not  wrouj^lit  hy  licr  husband,  arises 
solely  from  tlie  restricted  *nature  of  her  interest  in  the  lands.  ^  ,  j  ,,^^  -, 
On  this  point,  the  law  was  well  stated  by  Lens,  Serjeant,  in  L  ~  J 
argument  on  this  case.  "Where  mines  have  been  actually  wrought  as 
part  of  the  estate  of  the  husband,  they  may  be  collaterally  subject  to 
Dower  with  the  rest  of  his  real  jiroperty.  But  mines  have  never  been 
assigned  as  in  their  own  nature  liable  to  Dower.  The  interest  of  tenant 
in  Dower  is  a  life  estate  oidy;  but  an  interest  which  can  enable  ttie  pos- 
sessor lo  open  mines  must  be  an  estate  of  inheritance,  for  it  is  an  act  of 
waste  in  a  tenant  for  life."(/;) 

This  doctrine  is  wholly  inapplicable  to  the  case  of  grants  of  strata  in 
the  lands  of  a  third  ])erson  to  the  husi)and  in  fee.  In  that  case,  working 
the  mine  is  the  only  mode  of  enjoyment  of  which  the  jiroperty  is  capa- 
ble, and  if  such  a  property  were  granted  to  A.  for  life,  remainder  to  B. 
in  fee,  it  would  be,  dilhcult  to  understand  how  B.  could  maintain  waste 
against  A.  for  opening  tlie  mine,  when  it  is  obvious  that  A.  is  to  have 
some  interest,  and  the  denying  his  right  to  open  the  mine,  is  in  efiect 
denying  that  that  interest  is  to  confer  any  species  of  enjoyment.  If 
mines  are  unojiened  in  a  man's  own  lands,  nothing  short  of  an  ownership 
of  the  iniieritauco  will  enable  him  to  open  and  work  those  mines;  but, 
if  he  grants  the  mines  substantively  to  another,  it  would  be  a  new  doc- 
trine to  contend  that  he  must  grant  an  estate  of  inheritance,  in  order  to 
confer  a  right  of  taking  the  benefit  of  the  grant. 

The  exceptions  to  the  rule,  that  the  wife  is  dowable  of  the  lands  or 
tenements  of  her  husband,  have  *arisen  principally  upon  ^  ^.^.  -, 
feudal  principles,  and  regard  those  hereditaments  whereof  ^  J 

the  husbnnd  is  in  some  sort  a  trustee  for  the  public,  or  wherein  the 
public  have  an  interest.  Thus  the  Queen  consort  shall  not  be  endowed 
of  the  crown ;((/)  nor  shall  a  woman  be  endowed  of  a  castle  or  fortress 
that  i.s  maintained  for  the  defence  of  the  realm;  "  because  (says  Coke,) 
it  ought  not  to  be  divided;  and  the  public  shall  be  preferred  before  the 
private. "(?')  For  the  same  reason  it  was  the  law  before  the  abolition  of 
military  tenures,  that  a  woman  should  not  be  endowed  de  homagiis  of 
her  husband  qua;  sunt  de  gue.rra.(s) 

But  of  a  castle  that  is  only  maintained  for  the  j)rivate  use  and  habita- 
tion of  the  owner,  a  woman  is  dowable.  (/) 

Of  the  capital  messuage  or  mansion,  being  caput  hurouiap,  or  coniita- 
tus,{u)  the  wife  shall  not  be  endowed,  for  the  honour  of  the  realm,  luit 
the  application  of  this  doctrine  has  been  almost  entirely  removed  from 
modern  practice  by  the  decision  in  Gerrard  v.  Gerrard,(r)  which  re- 
strained it  to  baronies  by  tenure.  In  this  case,  Lady  Gerrard  brought  a 
writ  of  Dower,  and  therein  demanded  a  third  part  of  a  capital  messuage 
called  Bromley  Hall.  The  *tenant  pleaded  that  the  mes-  •\c>o  ^ 
suage  in  demand  had  time  out  of  mind   been  called  as  well   ^  ^ 

{  p)   1  Taunt.  406.  (c)   Liber  Succcssionis.  9.:.  b. 

(i)   Co.  Liu.  ni.  A.;  Bract.  9-3.  a.;  2  List.  17. 

(s)   Put.  I  E.  1.  M.  17  ;  and  see  Esch.  4.  E.  1.  nu.  88. 

(0  P.  2:5  El.  C.  H.;  Co.  Lilt.  31.  6.;  Bract,  f.  96;  Brit.  cap.  103  ;  Flet.  I.  5.  c.  23  ;  30  E. 
1.  Vouih.  298;  17  H.  3.  Dow.  1  92  ;  8  H.  3.  Dow.  196;  8  H.  3.  ib.  191.  Sec  furtlior  on 
this  lioiui  in  the  chai)lpr  011  assicnmciil  of  dower. 

(«)   Co.  Litt.  31  n  ;  4  H.  3,  dower.  180. 

{v)  I  Uavm.  72  ;  5  Mod.  64;  1  Saik.  253;  3  Lev.  101;  Holt.  2r.O ;  Comb.  352;  Skin. 
593  ;  Cases  B.  R.  84. 


56  PARK  ON  DOWER. 

Gerard's  Bromley,  as  Bromley  Hall;  and  that  Sir  Thomas  Gerrard 
being  seised  thereof  in  his  demesne  as  of  fee,  King  James  I.  by  letters 
patent  under  the  great  seal  of  England,  created  the  said  Sir  Thomas 
Gerrard  Baron  of  Gerard's  Bromley,  and  that  he  was  commorant  there 
with  his  family,  and  so  the  messuage  in  demand  became,  and  had  ever 
since  continued,  caput  baronise,  and  brought  down  the  title  both  of  the 
barony  and  messuage  to  himself,  demanding  judgment  if  the  demandant 
ought  to  be  endowed  thereof.  The  Court  of  Common  Pleas,  upon 
demurrer  by  the  demandant,  gave  judgment  for  her;  upon  which,  the 
tenant  brought  error  in  the  Court  of  King's  Bench,  and  assigned  in  part, 
that  the  demandant  ought  not  to  be  endowed  of  this  messuage,  being 
caput  baronix,  because  it  would  tend  to  the  dishonour  of  the  dignity  to 
have  the  capital  messuage  divided  and  dismembered;  but,  it  was  for  the 
honour  of  the  realm  that  it  be  kept  entire,  and  for  authorities  were  cited 
1  Inst.  31.  b.\  Fitz.  Abr.  Dower.  ISO;  Bract,  lib.  ii.  170.  b.;  P.  4.  H. 
III.  Rot.  7.  For  the  defendant  in  error  it  was  argued,  that  the  authori- 
ties cited  of  the  other  side  were  of  feudal  baronies,  of  which  there  were 
not  any  remaining  at  that  time  except  Arundel.  And  of  this  opinion 
was  the  whole  court.  And  this  privilege  was  allowed  to  them,  because 
they  ought,  upon  necessity,  to  defend  the  realm  to  which  they  were 
bound  by  tenure.  For  the  King,  at  the  creation  of  the  barony,  gave  to 
the  baron  lands  and  rents,  to  hold  of  him  by  the  defence  of  the  realm. 

if,  no  -I  I^iJt  then  this  cannot  be  a  feudal  barony,  *for  it  was  in  the 
L  ^   seisin  of  the  Gerrards  before,  and  tlierefore  was  not  given  to 

the  Gerrards  by  the  King  at  the  creation  of  the  barony,  to  hold  of  him. 
And  Rokeby,  Justice,  said,  that  this  was  the  reason  of  the  judgment  in 
the  Common  Pleas. 

Of  some  tenures  a  woman  is  not  dowable  by  reason  of  her  incapa- 
city.(7o) 

If  A.  holds  land  of  B.  by  homage,  fealty,  and  lO.y.  rent,  and  B.  dies, 
his  wife  shall  not  be  endowed  of  tlie  homage  and  fealty,  but  shall  have 
a  third  part  of  the  rent  as  a  rent-seek. (a.-) 

And  there  are  some  things  whereof  it  is  said  a  woman  shall  not  be 
endowed,  because  they  are  so  entire  in  their  own  nature,  that  they  can- 
not be  divided:  as  of  a  hundred. (y) 

Neither  shall  a  woman  be  endowed  of  a  common  sans  number,  for 
otherwise,  say  the  books,  the  common  would  be  overstocked. (2)  In  a 
case  reported  by  Godbolt,  Windham,  J.,  said,  that  if  the  common  be 
uncertain,  she  shall  be  allowed  for  it;  but  Meade,  J.,  said,  he  did  not 
know  how  the  allowance  should  be  made.(a) 

So  far  as  Dower  is  a  legal  right,  and  is  to  be  pursued  by  legal  reme- 
dies, it  is  obvious,  that  the  estates  in  respect  of  which  it  is  claimed,  can 
be  such  only  as  have  existence  in  the  contemplation  of  a  court  of  law. 
.-  *,p.  -1  It  never  could  become  a  question,  therefore,  ^whether  the 
*-  -'  wife  of  a  cestui  que  trust  could  have  a  title  of  Dower  at  law. 

But  a  question  which  has  been  the  subject  of  much  agitation,  and  upon 
which,  though  now  settled,  the  rule  was  for  a  long  time  in  a  vacillating 


(w)  Styles.  69.  (x)  Kelw.  126;  Perk.  sec.  345,  346. 

(y)  Styles.  Pr.  Reg.  68.  (r)  Perk.  sec.  341  (cites  2  E.  2.  123)  Godb.  21. 

\a)  Anon.  Godb.  21. 


OF  DOWER  AS  TO  EQUITABLE  ESTATES.  57 

state,(/;)  was  whetlier  courts  of  ^equity,  having  in  most  cases  ,  )»io«;  i 
applied  the  rules  and  incitlents  of  legal  estates  to  the  owner-  L  "  J 
ship  of  the  trust,  should  or  should  not  follow  that  principle  in  relation 
to  Dower,  and  give  the  wife  of  a  cestui  que  Iruttt  an  etjuitahle  equiva- 
lent for  her  Dower  at  law,  out  of  the  trust  estate. 

liefore  the  statute  of  uses,  the  courts  of  equity,  alihough  in  many 
cases  tliey  made  the  estate  of  the  cestui  que  use  sul)ject  to  the  incidents 
of  legal  estates,  yet,  for  some  reasons  which  can  n^mf  on!}'  he  conjec- 
tured, did  not  think  (it  to  give  Dower  of  an  use.(c)  Perhaps  the  courts, 
considering  such  interests  only  as  arose  by  contract  the  proper  subjects 
of  their  jurisdiction,  looked  upon  Dower  as  a  right  arising  solely  by 
implication  of  law,  and  therefore  not  within  the  pale  of  equitable  cog- 
nizance. Chief  liaron  (liibert  states  as  a  reason,  that  the  chancery 
would  not  allow  the  fcoilurs  to  be  seised  to  any  body's  use  but  those 
that  were  jiarticularly  named  in  the  trust;(^)  and  this  does  not  seem 
altogether  imi)robal)le,  looking  at  the  use,  as  courts  of  equity  did  then 
look  at  it,  as  the  creation  of  the  parties,  and  therefore  to  be  solely  go- 
verned by  their  expressed  intent.  However  this  may  be,  when,  in 
consequence  of  the  construction  which  had  been  put  upon  the  statute  of 
uses,  chancery  trusts  had  been  introduced  in  practice,  conveyancers, 
regarding  them  as  equivalent  to  uses  before  the  statute,  and  governed  by 
the  same  rules,  adoj)ted  tiie  plan  of  putting  the  legal  estate  in  trustees, 
in  cases  where  it  was  an  object  to  avoid  the  attachment  of  a  title  of 
Dower,  and  the  "efficacy  of  this  mode  was  so  little  doubted  ^  *ior 
of,  that  it  became  a  very  general  practice.  Here  arose  the  L  ^  ' 
difficulty;  for,  in  the  mean  time,  the  doctrine  of  trusts  had  become  the 
subject  of  j)rogressive  consideration  in  courts  of  equity,  and  they  had  by 
degrees  formed  a  system  of  equitable  jurisdiction,  witii  regard  to  the 
estate  in  the  trust,  in  which  they  had  been  cliiefly  governed  by  analogy 
to  the  rules  of  law,  and  under  which  (the  same  objection  not  occurring,) 

(6)  In  Colt  V.  Colt  (12  Car.  2.)  1  Ch.  Rep.  254.  2  P.  W.  640,  cited ;  the  plaintiff  filpil 
her  bill,  among  other  things,  for  dower  of  a  trust  estate,  and  the  bill  was  dismissed,  so  fur 
as  reialet!  to  the  trust  estate. 

In  Fletcher  v.  Robinson  (1053,)  Pr.  Ch.  2.'i0,  cited  ;  2  P.  W.  710,  cited  from  L.  f?.,  dower 
was  decreed  out  of  a  trust  estate,  and  that  the  conveyance  of  the  legal  estate  should  not  be 
given  in  evidence  at  law  ;  and  the  deed  being  set  up  at  law  notwithstanding,  and  the  plain- 
tilfconseciuently  nonsuited,  the  court  afterwards  ordered  a  commission  to  set  out  the  dower. 

In  Kadnor  v.  Hotheram  (169(!,)  I'r.  Ch.  65,  it  was  said  by  Lord  Chancellor  Somers,  that 
all  agreed  that  a  woman  cannot  be  endowed  of  the  tntf,t  of  the  inheritance,  as  she  may  of 
the  inheritance  itself. 

In  lioUomley  v.  Fairfax  (1712,)  Pr.  Ch.  336 ;  1  Ch.  Rep.  254,  it  was  clearly  agreed,  that 
if  the  husband  before  marriage  conveys  his  estate  to  trustees  and  their  heirs,  in  such  manner 
as  to  put  the  legal  estate  out  of  him,  though  the  trust  be  limited  to  him  and  bis  heirs,  that  of 
this  c(|uitable  estate  the  wife  shall  not  bo  endowed,  and  that  the  court  had  never  gone  so  far 
as  to  allow  her  dower  in  such  a  case. 

Ill  D.ily  V.  Lynch  (1715,)  1  Uro.  P.  C.  538,  it  was  said,  that  there  were  several  precedents 
in  Ireland,  where  the  widows  of  transplanters,  who,  in  salisfailion  of  their  old  estates,  had  lands 
given  to  them  under  the  government  of  Oliver  Cromwell,  by  transplantation,  and  conse- 
quently had  but  ccjuitable  estates,  had  obtained  decrees  in  the  Court  of  I'hancery  in  that 
kingdom,  for  the  third  part  of  such  eiiuitable  estates  and  transplanted  interests. 

In  Ambrose  v.  Ambrose  (1717,)  1  P.  W.  ?/:i\;  Printed  cases  in  D.  P.  1717.  it  was  con- 
sidered clear,  that  a  woman  was  not  dowable  of  an  estate  bought  I)y  her  husband  in  the  name 
of  a  third  person. 

'Phe  subscciuent  cases  are  mentioned  in  the  text. 

((■)    l  Co.  1.  b.;  Perk.  sec.  349;  I  Co.  123  ;  Uy.  H.  pi.  47;  3  P.  W.  233. 

((/)  Gilb.  Uses,  25, 

2  P   2 


58  PARK  ON  DOWER. 

they  had  made  the  trust  subject  to  curtesy  .{e)  Upon  an  attentive  pe- 
rusal of  the  cases,  it  will  be  found,  that  after  much  hesitation,  whether 
to  prefer  consistency  of  principle,  or  security  of  titles,  the  latter  motive 
at  length  gained  the  ascendancy,  the  existence  of  an  anomalous  distinc- 
tion being  regarded  as  of  less  importance  than  the  extensive  mischief 
which  would  have  been  produced  by  disregarding  a  practice  which  had 
been  applied  to  perhaps  half  the  titles  in  the  kingdom.  Some  judges 
liave  indeed  endeavoured  to  vindicate,  upon  principle,  the  rule  which 
denies  Dower  of  a  trust,  but  the  consideration  above  stated  has  been  the 
substantial  and  predominating  ground  upon  which  that  rule  is  now 
decisively  established  without  danger  of  further  discussion. 

This  was  well  stated  by  Lord  Redesdale  in  D'Arcy  v.  Blake.  (/") 
r  *i  P7  1  "  ^^^  difficulty  (he  observed,)  in  which  *the  courts  of  equity 
»-  -J  have  been  involved  with  respect  to   Dower,   I  apprehend 

originally  arose  thus:  they  had  assumed  as  a  principle  in  acting  upon 
trusts,  to  follow  the  law;  and  according  to  this  principle,  they  ought  in 
all  cases  where  rights  attached  on  legal  estates,  to  have  attached  the  same 
rights  upon  trusts;  and  consequently  to  have  given  Dower  of  an  equita- 
ble estate.  It  was  found,  however,  that,  in  cases  of  Dower,  this  principle, 
if  pursued  to  the  utmost,  would  affect  the  titles  to  a  large  proportion  of 
the  estates  in  the  country;  for  that  parties  had  been  acting  on  the  footing 
of  Dower  upon  a  contrary  principle;  and  had  supposed  that,  by  the 
creation  of  a  trust,  the  right  of  Dower  would  be  prevented  from  attach- 
ing.(,o-)  Many  persons  had  purchased  under  this  idea;  and  the  country 
would  have  been  thrown  into  the  utmost  confusion  if  courts  of  equity 
had  followed  their  general  rule  with  respect  to  trusts  in  the  cases  of 
Dower.  But  the  same  objection  did  not  apply  to  tenancy  by  the  curte- 
sy; for  no  person  would  purchase  an  estate  subject  to  tenanc)'  by  the 
r  *ioQ  1  curtesy,  without  the  concurrence  of  *the  person  in  whom 
■-  -'  that  right  was  vested.     This  I  take  to  be  the  true  reason  of 

the  distinction  between  Dower,  and  tenancy  by  the  curtesy.  It  was 
necessary  for  the  security  of  purchasers,  of  mortgagees,  and  of  other 
persons  taking  the  legal  estates,  to  depart  from  the  general  principle  in 
case  of  Dower,  but  it  was  not  necessary  in  the  case  of  tenancy  by  the 
curtesy. "(A) 

In    the  case  of  Banks  v.   Sutton(^■)   (1732,)  Sir  Joseph  Jekyll  was 


(e)  See  the  cases  of  Watts  v.  Ball,  1  P.  W.  lOS.  2  Eq.  Ab.  727;  Sweetapple  v.  Bindon, 
2  Vern.  536;  Casborne  v.  Scarfe,  1  Atk.  603.  2  Eq.  Ab.  728  ;  Cunningham  v.  Moody, 
1  Ves.  174;  Dodson  v.  Hay,  4  Bro.  C.  C.  404  ;  Roberts  v.  Dixwell,  1  Atk,  609;  Hearle  v. 
Greenbank,  1  Ves.  299.     3  Atk.  716,  for  authorities  on  this  head. 

(/)   2  Sch.  and  Lefr.  388  ;  and  see  also  1  Bl.  160,  182. 

{g)  Lord  Chancellor  Talbot,  in  Attorney  General  v.  Lockley,  Sugden's  Vend.  Appendix. 
32,  speaking  of  the  practice,  says,  "  I  mention  this,  because  it  is  hinted  at  as  if  the  practice 
of  conveyancers  was  not  of  great  weight ;  and  truly  it  is  not  in  their  power  to  alter  the  law: 
but  when  there  is  a  received  opinion,  and  conformity  of  contracts  and  settlements  thereupon, 
it  is  extremely  dangerous  to  shake  it,  which  would  disUirb  the  possession  of  many  who  are 
very  quiet,  and  think  themselves  very  secure  ;  therefore,  it  ought  to  be  done  only  on  the  clearest 
and  plainest  ground.  In  the  present  case,  I  cannot  say  they  are  mistaken ;  because  they 
have  gone  on  this  ground,  that  trusts  are  now  what  uses  were  at  the  common  law,  where  a 
wife  was  not  dowable  of  an  use." 

(/i)  Under  this  view  of  the  subject,  it  is  difficult  to  understand  why  the  denial  of  dower  of 
trust  estates  has  been  extended  to  frecbcnch  in  copyholds,  unless  for  the  sake  of  analogy  to 
the  anomalous  case  of  dower.     See  Forder  v.  Wade,  4  Rro.  C.  C.  525. 

(t)   2  P.  W.  700. 


OF  DOWER  AS  TO  KQUITABLE  ESTATES.  59 

strongly  inclined  to  take  a  distinction,  (though  he  decided  the  case  on 
another  ground,)  between  a  trust  created  hy  the  husband  himself,  of 
which  he  admitted  a  woman  was  not  dovvable,  and  a  trust  created  by 
another  person.  "That  the  wife  shall  not  have  Dower  of  a  trust  crea- 
ted by  the  husband,"  he  remarked  "or  (which  is  all  one,)  of  a  purchase 
made  by  him  in  a  trustee's  name,  may  be  reasonalde,  since  it  may  be 
presumed  to  be  done  with  intent  to  bar  Dower,  and  every  man  may  do 
as  he  pleases  with  his  own.  Accordingly,  it  has  been  commonly  prac- 
tised for  a  purchaser  to  take  a  conveyance  in  his  own  name  and  in  the 
name  of  another  person,  as  trustee,  purposely  to  prevent  Dower."  Ho 
then  proceeds  to  cite  the  cases  of  Robinson  v.  Fletcher,(A:)  Otway  v, 
IIudson,(/)  &c.  and  after  observing  upon  them,  ho  added,  "  after  all 
these  reasons  and  authorities,  *I  must  declare,  that  I  would  j-  »,£,„  -i 
not  take  it  upon  myself  to  deternine  whether  a  wife  shall  L  "  J 
have  Dower  out  of  a  trust  of  inheritance,  where  it  is  created,  not  by  Ihe 
husband,  but  by  some  other  person,  and  no  time  limited  for  conveying, 
the  legal  estate;  when  that  comes  to  be  the  case,  it  will  be  time  enough 
to  do  it."  In  Chaplin  v.  Chaplin, (m)  which  was  decided  soon  after,, 
one  of  the  questions  was,  whether  the  plaintilf  was  dowable  of  an  equita- 
ble rent  charge  created  by  a  settlement  to  which  the  husband  was  no 
l)arty;  and  after  much  debate  and  consideration.  Lord  Chancellor  Tal- 
bot was  of  ojjinion,  that  the  cases  cited  did  not  bear  out  tlie  general  pro- 
position that  there  shall  be  Dower  of  a  trust.  In  Attorney  General  v. 
Scott  (1735,)(n)  Lord  Chancellor  Talbot  made  the  same  decision  upon 
an  equitable  estate  taken  by  the  husband  by  devise.  The  distinction  con- 
tendeil  for  by  Sir  Joseph  Jekyll  does  not  seem  to  have  been  mentioned 
in  argument  in  either  of  these  cases,  although  both  of  them  involved- 
it.  in  Godwin  v.  Winsmorc,(o)  however,  Lord  Ilardwicke  expresssly 
adverted  to  the  point.  "  It  is  an  established  doctrine,  now,"  he  ob- 
serveil,  "  that  a  wife  is  not  dowable  of  a  trust  estate.  Indeed,  a  distinc- 
tion is  taken  by  Sir  Joseph  Jekyll  in  Banks  v.  Sutton,  1  P.  \V.  707, 
709,  in  regard  to  a  trust,  where  it  descends  or  comes  to  the  husband 
from  another,  and  is  not  created  by  himself;  but  I  think  there  is  no 
ground  for  such  a  distinction;  for,  it  is  going  on  suppositions  which  hold 
on  both  sides;  *and,  at  the  latter  end  of  the  report,  Sir  Joseph  ^  *iqn  -i 
Jekyll   seems  to  be  very  dilVulent  of  it  himself,  and  rested  L  J 

chieily  on  another  j)oint  of  erjuit}^  so  that  it  is  no  authority  in  this  case. 
But  (he  added,)  there  is  a  late  authority  in  direct  contradiction  to  the 
distinction  above  taken  in  Banks  v.  Sutton,  the  case  of  the  Attorney 
General  v.  Scott,"  &.c.  So  also,  in  Burgess  v.  VVheate,  Sir  Thomas 
Clarke  remarked  that  the  distinction  made  by  Sir  Joseph  Jekyll  was 
founded  on  too  precarious  reasoning  to  go  upon.  "  The  husband,"  he 
added,  ''^  found  the  estate  subject  to  the  trust  created  by  the  ancestor: 
who  can  say  that  he  intended  the  wife  to  be  dowable.''  Who  can  say, 
that  if  he  had  not  found  the  estate  under  a  trust,  he  might  not  have 
creatcil  such  a  trust?"(  j)) 

In  the  state  of  the  law  in  modern  times,  as  to  etjuitable  estates,  it  does 


(t)   Supra,  p.  124.  note.  (/)  2  Vern.  .083. 

{m)  3  \'.  W.  229. 

(»»)  Ca.  t.  Talbot.  138  ;  and  more  fully,  Suc;ci.  Vend.  Appendix.  32. 

(o)  2Atk.  525.  "         (.;>)    1  lil.  138;  and  sue  lb.  IGl. 


60  PARK  ON  DOWER. 

not  admit  of  a  doubt  that  the  rule  as  now  settled,  denying  Dower  out  of 
a  trust,  is  a  departure  from  principle;  but  in  considering  this  question 
from  time  to  time,  some  of  our  equity  judges  appear  to  have  unneces- 
sarily imposed  on  themselves  another  difficulty,  and  to  have  argued  the 
case  upon  a  ground  which  is  very  questionable.  Much  of  the  embarrass- 
ment which  has  occurred  in  deciding  how  far  the  right  to  Dower  should 
prevail,  as  a  matter  of  substantive  jurisdiction,  in  courts  of  equity,  par- 
ticularly in  applying  it  to  trusts  and  equities  of  redemption,  has  arisen 
from  the  notion  that  Dower  is  not  merely  a  legal,  but  also  an  equitable 
right.  To  make  out  that  it  was  a  right  of  that  description,  and  to  bring 
^  -.it  within   the   grounds  of  original  equitable  jurisdiction,  it 

L  -I  was  necessary  that  it   *shou]d  originate  in   contract,   either 

express  or  implied;  and  several  judges  have  gone  the  length  of  arguing 
upon  it  accordingly.  The  bulk  of  the  argument  of  Sir  Joseph  Jekyll 
in  Banks  v.  Sutton, (^)  is  directed  to  prove,  that  Dower  is  a  moral  and 
equitable,  as  well  as  a  legal  right.  "The  relation  of  the  wife,"  he  ob- 
serves, "as  it  is  the  nearest,  so  it  is  the  earliest;  and  therefore  the  wife  is 
the  proper  object  of  the  care  and  kindness  of  her  husband ;  the  husband  is 
bound  by  the  law  of  God  and  man  to  provide  for  her  during  his  life,  and  af- 
ter his  death,  the  moral  obligation  is  not  at  an  end,  but  he  ought  to  take 
care  of  her  provision  during  her  own  life."  All  this  is  perfectly  true,  but 
nothing  to  the  purpose.  That  the  wife  has  a  7^ora/ right  to  a  provision,  is 
a  consideration  of  legislative,  and  not  of  judicial  application;  courts  of 
equity  do  not  sit  to  enforce  naked  moral  obligations;  neither  does  the  mo- 
ral obligation  of  a  husband  to  provide  for  his  wife  dictate  any  such  specific 
and  defined  provision  as  thatentitled  Dower.  The  result  of  the  mere  moral 
obligation  is  equally  undefined  as  that  of  a  parent  to  provide  for  his 
children.  That  the  law  has  followed  up  this  obligation,  in  the  case  of 
the  wife,  with  an  arbitrary  imperative  provision,  is  nothing  to  the  pur- 
pose, but  leaves  it  merely  to  the  original  question  (a  question  upon 
which  it  is  true  that  convenience  has  got  the  better  of  principle)  whe- 
ther in  this  instance  equity  should  follow  the  law.  "  But,"  adds  Sir  J. 
-,  Jekyll,  "  Dower  arises  from  a  contract  made  upon  a  valuable 
L  ""    J  consideration;  marriage  being  in  its  nature  a  *civil,  and  in 

its  celebration  a  sacred  contract,  and  the  obligation  is  a  consideration 
moving  from  each  of  the  contracting  parties  to  the  other;  from  this  ob- 
ligation arises  an  equity  to  the  wife,  in  several  cases,  without  any  pre- 
vious agreement,  as  to  make  good  a  defective  execution  of  a  power, 
or  defective  conveyance;  or  supply  the  defect  of  a  surrender  of  a  cop}'- 
hold  estate;  in  all  which  equity  relieves  the  wife,  and  makes  a  provision 
for  her,  where  it  is  not  unreasonable  or  injurious  with  respect  to 
others."(r)  This  argument  confounds  the  contract  itself  with  the  ex- 
traneous legal  fruits  of  the  contract.  It  is  the  very  absence  of  contract 
for  the  provision  of  the  wife,  which  calls  into  operation  the  positive  law 
to  counteract  the  injustice  which  might  arise  from  the  omission  of  such 
contract.  Strictly  speaking,  the  engagement  between  the  parties  is 
nothing  more  than  a  contract  to  enter  into  the  respective  relations  of 
matrimonial    union,  and  the  law,   contemplating  the  consequences  of 


{q)  2  Eq.  Ab.  382.  n.   2  P.  W,  634;  and  see  also  Pr.  Ch.  244,  per  Sir  John  Trevor,  in 
Dudley  v.  Dudley, 
(r)   2  Eq.  Ab.  382  n. 


OF  DOWER  AS  TO  EQUITABLE  ESTATES.  61 

that  contract,  by  its  own  silent  operation  raises  a  provision  for  the  wife 
in  the  event  of  her  surviving,  intlepcndent  of,  and  without  reference  to 
the  agreement  of  the  parties.  It  may,  indeed,  be  said,  that  allowing  the 
right  to  J)ower  does  not  enter  into  the  essence  of  the  original  contract, 
yet,  the  general  understanding  that  the  wife  should  be  so  provided  for 
by  force  of  the  marriage  ordinance,  does  in  fact  form  a  basis  of  the  con- 
tract, and  as  such  a  matter  of  ecjuitablc  support.  But,  even  this  argu- 
ment fails  to  bear  out  the  position;  for,  as  was  ingeniously  ^  »iqQ  t 
remarked  by  Lord  Chancellor  *Tall)ot,(5)  "  the  answer  is,  L  ^ 

equity,  where  there  is  a  valuable  consideration,  will  supply  form.  But 
hath  she  contracted  for  this  particular  estate?  [the  trust  estate]  No,  for 
nothing  but  what  the  marriage  implies,  which  is  that  she  shall  have 
Dower  of  what  she  is  dowable  by  law;  and  then  the  question  comes  to 
this,  whether  she  is  dowable  by  law  of  a  trust."  The  same  answer  ap- 
plies with  equal  force  to  another  argument  of  Sir  Joseph  Jekyll's,  viz. 
that  the  right  of  Dower  is  founded  upon  express  contract.  "  By  the 
common  law  (he  observes)  where  the  husband  had  an  inheritable  estate, 
it  was  part  of  the  marriage  contract  that  the  wife  should  have  her  Dow- 
er, one  species  of  which  wrs  ad  ostium  ecclesiie.'^  Litt.  sec.  39.  'When 
the  husband  comes  to  the  church  door  to  be  married,  after  affiance  or 
troth  plighted  between  the  husband  and  wife,  he  endows  her,'  which 
implies  that  such  endowment  is  before  the  marriage  is  completely  so- 
lemnized; and  though  Lord  Coke  says  such  Dower  is  «/?e;'  the  mar- 
riage solemnized,  this  is  a  mistake. (^)  Also  by  the  Romish  ritual  used 
here  ^before  the  Reformation,  it  appears  that  all  marriages  were  cele- 
brated ad  ostium  ecclesise;  so  that  it  should  seem  to  be  incumbent  on 
the  husband  if  he  could  do  it,  to  endow  his  wife,  and  to  specify  the 
Dower  upon  the  marriage;  instead  of  which  the  general  words  of  eii- 
doiving  with  all  his  tvorldly  goods,  in  the  office  of  matrimony  now  in 
use,'came  in;  from  whence  it  is  to  be  inferred  that  Dower  ^  *-ixa  i 
is,  and  time  *out  of  mind  has  been,  a  part  of  the  marriage  ^  -' 

contract  when  it  came  to  be  publicly  solemnized;  and,  if  so,  a  right  of 
Dower  is  founded  on  contract,  and  is  therefore  an  equitable  right.''(w) 

It  is  difficult  to  conceive  any  reasoning  more  loose  than  the  above, 
but  even  had  it  been  otherwise,  its  application  to  equitable  estates  would 
have  been  sufficiently  rebutted  by  Lord  Talbot's  observation  before 
stated.  Of  the  jjassage  in  the  marriage  service  of  the  Church  of  Eng- 
land, alluded  to  by  the  learned  judge,  it  is  perhaps  difficult  now  to  point 
out  the  real  history.  That  service  was  not  composed  by  lawyers;  and 
the  divines  who  inserted  it  probably  intended  nothing  more  than  to  cx- 
j)rcss  the  moral  duty  of  the  husband  to  make  his  wife  the  partaker  of 
his  worldly   fortune. (i;)       If  the  lawyers  had    been    *con-  ^     ^  -, 

suited  on  the  subject,  and  it  had  beeu  proposed  by  them  to  •-  ^    -^ 

(5)   Attorney  General  v.  Lockley.     Sugden's  VenJors.  A  pp.  34. 

(/)  The  mistake  is  not  with  Littleton,  but  witli  8ir  Joseph  Jckylh  See  Perk,  sec  437, 
Hughes  on  Original  Writs,  176.  2  Bl.  Com.  134,  note. 

{u)  2  P.  W   638.  2  Eq.  Ab.  382,  n. 

(•t>)  In  a  note  to  2  Bl.  Com.  134,  are  the  following  observations:  "  When  special  endow- 
ments were  maile  ud  ostium  ecclesi.v,  the  husbaml,  after  alliance  made,  and  troth  jilisihted', 
used  to  declare  with  what  specific  lands  he  meant  to  endow  his  wife,  ijuod  ilotiit  earn  ilr  tali 
rncmcrlo  mm  pertitienUis,  &c.  (Bract.  I.  2.  c.  39.  sec.  6.)  and  therefore  in  the  old  York 
ritual  (i^eld.  Ux.  Hebr.  1.  2.  c.  27.)  there  is  at  this  part  of  the  matrimonial  service  the  fol- 


62  PARK  ON  DOWER. 

engraft  a  species  of  Dower  ad  ostium  ecclesigs  upon  the  formulary  of 
the  Protestant  church,  they  would  surely  have  suggested  some  other 
mode  of  expressing  it  than  that  of  "  with  all  my  worldly  goods  I  thee 
endow;"  and  if  the  effect  of  that  expression  he  such  as  Sir  Joseph  Jekyll 
has  represented  it,  it  is  difficult  to  say  how  a  man  can  answer  to  his 
conscience  in  making  that  declaration  in  the  face  of  the  church,  who 
has  the  day  before  executed  a  settlement  for  barring  his  wife's  Dower. 

These  observations  are  of  little  importance  at  this  day  in  application 
to  the  question  of  Dower  out  of  equitable  estates,  which  is  too  well 
settled  on  other  grounds  to  be  now  agitated;  but  as  it  is  impossible  to 
define  the  influence  of  plausible,  though  fallacious,  reasoning,  under  the 
sanction  of  great  names,  the  writer  has  thought  it  might  be  not  wholly 
without  use  to  direct  the  attention  of  the  reader  to  the  fallibility  of  the 
argument  in  question. 

In  the  case  of  Banks  v.  Sutton  before  referred  to,  Sir  Joseph  Jekyll 
decided,  that  where  there  is  a  time  limited  for  conveying  the  legal  estate, 
and  that  time  expires  in  the  life  of  the  husband,  there,  without  regard  to 
the  question  of  Dower  out  of  trust  estates,  the  wife  shall  be  dowable, 
upon  the  principle  in  courts  of  equity,  "  that  when  an  act  is  to  be  done 
by  a  trustee,  that  is  to  be  looked  upon  as  done  which  ought  to  be  done; 
P  *]  op  -|  consequently  the  estate  directed  *to  be  conveyed  to  the  plain- 
•-  -^  tiff's  husband  ought  to  be  considered   as  actually   conveyed 

to  and  vested  in  him;  and  then  the  plaintiff  hath  a  right  to  Dower  out 
oi\V^{w)  This  doctrine  is  now  generally  considered  as  over-ruled,  and 
does  not  seem  to  have  been  ever  much  relied  on.  In  the  subsequent 
case  of  Crabtree  v.  Bramble, (.r)  Lord  Hardwicke  observed,  although 
without  referring  to  Banks  v.  Sutton,  "  that  it  must  be  allowed  equity 
follows  the  contracts  of  parties  in  order  to  preserve  the  intent,  by  carry- 
ing it  into  execution,  which  depends  on  this  principle,  that  what  has 
been  agreed  to  be  done  for  valuable  consideration  is  considered  as  done, 
and  holds  in  every  case  except  in  DowevP  This  observation  was 
applied  more  particularly  to  the  case  of  money  agreed  to  be  laid  out  on 
land,  as  to  which  no  doubt  is  now  entertained  that  a  woman  is  not 
dowable. (y)  In  Curtis  v.  Curtis,  however,  Lord  Alvanley  observed, 
"  it  is  now  too  late  to  contend  that  the  widow  can  have  her  dower  out  of 
any  estate  in  which  her  husband  had  not  the  legal  fee;  for  Banks  v. 
Sutton  is  not  now  to  be  supported;  not  that  there  appears  to  have  been 
any  decision  directly  contradicting  it,  for  Attorney  General  v.  Scott  did 
not  mean  to  find  fault  with  Banks  v.  Sutton.  However  it  is  now  a 
settled  point,"(r)  From  the  generality  of  the  proposition  that  Dower 
can  only  be  of  an  estate  of  which  the  husband  had  the  legal  fee,  it  seems 

lowing  rubric  : — Sacerdos  intemget  datem  vud'ieris;  et  si  terra  ei  in  dotem  detur,  tunc 
dicutur  psuhnus  iste,  &c.  When  the  wife  was  endowed  generally  {^tbi  quis  uxorem  suam 
dofavirit  in  generali  de  ownihiia  tcrris  et  tenementis.  Bract,  ib  )  the  husband  seems  to 
have  said  "  with  all  my  lands  and  tenements  I  thee  endow,"  and  then  they  all  became  liable 
to  her  dower.  When  he  endowed  her  with  personalty  only,  he  used  to  say  '  wi.h  all  my 
worldly  goods'  (or  as  the  Salisbury  ritual  has  it,  '  with  all  my  worldly  chattel)  I  the  endow,' 
which  intitled  the  wife  to  her  thirds,  or  pars  rationabilis  of  his  personal  estate,  which  is 
provided  for  by  Mag.  Ch.  cap.  26,  (hough  the  retaining  the  last  expression  in  our  modern 
liturgy,  if  of  any  meaning  at  all,  can  now  refer  only  to  the  right  of  maintenance  which  she 
acquires  during  coverture  out  of  her  husband's  personaltv." 

(w)   2  P.  W.  706.  2  Eq.  Ab.  385.  {x)  3  Atk.  687. 

ly)  See  1  Ves.  S.  176.  1  Bro.  C.  C.  499.     (r)  2  Ves.  J.  124. 


OF  DOWER  AS  TO  EQUITIES  OF  REDEMPTION.  63 

quite  *clear  that  LonI  Alvanlcy  intended  to  be  understood  .  ^^^^  -, 
that  lianks  v.  Sutton  was  not  law  on  any  point  on  which  it  •- 
turned.  Although  a  case  where,  if  huids  had  been  purchased,  or  con- 
veyed, according  to  the  terms  of  an  agreement,  the  wile  w(jul(|  have  had 
a  title  of  Dower  at  law,  may  certainly  he  distinguished  from  that  of  a 
mere  common  trust,  it  cannot  he  said  in  one  case  more  than  in  the  other 
that  the  husband  had  the  legal  fee. 

The  rule  that  a  woman  is  not  dowable  of  an  equitable  estate  being 
once  established,  it  follows,  as  a  necessary  consequence,  that  if  the  hus- 
band makes  a  mortgage  in  fee  before  marriage,  the  wife  will  not  be 
dowal)Ie  of  the  equity  of  redemption.  If  indeed  the  money  was  paid  on 
the  day  named  in  the  condition,  the  estate  would  revest  in  the  husband, 
and  the  wife  become  dowable;  but  no  subsequent  payment  of  the  mort- 
gage money  by  the  husband  will  render  her  dowable,  if  he  dies  before  a 
reconveyance  of  the  legal  estate. 

The  question  of  Dower  of  a  mere  equity  of  redemption,  like  that  of 
Dower  of  a  trust,  has  undergone  much  fluctuation  of  opinion.  In  Banks 
V.  Sutton,  already  cited.  Sir  J.  Jekyll,  after  reviewing  the  cases  which 
bore  upon  the  question,  declared  that  he  "  did  not  know  nor  could  find 
any  instance  where  a  Dower  of  an  equity  of  redemption  was  controvert- 
ed, and  adjudged  against  the  dowrcss;  and  as  there  were  authorities  in 
cases  less  favourable,  therefore  he  declared  that  the  plaintifl'  being  the 
widow  of  the  person  entitled  to  the  equity  of  redemption  of  the  mort- 
gage in  question  (which  was  a  mortgage  '-in  fee)  had  a  right  ^  ^.^^g  -. 
of  redemption,  "(a)  But  in  the  subsequent  case  of  Dixon  v.  L 
Saville,(6)  the  doctrine  of  Banks  v.  Sutton  was,  after  long  argument, 
over-ruled  by  the  Lords  Commissioners  of  the  Great  Seal,  upon  the 
ground  that  the  question  was  nothing  more  than  whether  a  woman  was 
dowable  of  a  trust,  and  that  this  point  was  so  much  settled  that  it  would 
be  wrong  to  discuss  it  much.  This  has  been  since  recognised  to  be  the 
law  by  universal  practice,  and  by  several  of  the  most  learned  judges,  (c) 

Mr".  Powell  in  his  Treatise  on  JNlorlgagcs  has  observed,  that  "it  is 
necessary  to  remark  that  there  were  some  circumstances  which  distin- 
guished the  case  of  Banks  v.  Sutton  from  this  of  Dixon  v.  Savilie,  par- 
ticularly that,  in  the  former  case,  the  mortgage  was  made  by  the  ancestor 
of  the  husband,  whose  widow  claimed  Dower,  and  the  estate  came  to 
him  by  devise  subject  thereto;  also,  that  the  testator  seemed  to  have 
intended,  that  the  mortgage  should  be  paid  off  out  of  his  personal  estate, 
and  tiie  rents  and  prolits  of  the  real  estate,  which  would  accrue  belore 
the  devisee  attainetl  his  age  of  twenty-one,  at  which  time  a  moiety  ot 
the  legal  estate  was  positively  directed  to  be  conveyed  to  him.  For 
although  the  former  circumstance  of  the  mortgage  descending  does  not 
appear  to  me  to  aflbrd  any  argument  of  considerable  weight  in  favour  ot 
tiie  dowress,  because  the  only  inference  that  could  be  drawn  ^  «i3  )  i 
from  *that  circumstance  would  be,  that  the  mortgage  being  L 
made  by  the  ancestor,  and  not  by  the  husband,  it  could  not  be  concluded 
that  there  was  any  intention  in  the  husband  to  make  the  mortgage  a 
means  of  depriving  the  wife  of  Dower  (wliich  was  a  distinction  that  had 


(a)   2  P.  W.  7 IS,  719.  (b)   1  Bro.  C.  C.  .32fi.  2  Pow.  Mort.  720. 

(c)  See  3  Dro.  C.  C.  205,  per  Lord  Thurlow  in  Williams  v.  Lamb.  2  Sch.  &  Lefr.  388. 
per  Lord  Kedesdale  in  D'Arcy  v.  Blake. 


64  PARK  ON  DOWER. 

been  attempted  to  be  made,  in  cases  when  the  wife  claimed  Dower  of 
trusts,  between  trusts  descending,  and  trusts  made  by  the  husband,)  but 
which  inference  could  not  be  applied  to  the  case  of  a  mortgage,  because 
whether  that  descended  to,  or  was  made  by  the  husband,  the  intention 
with  which  it  was  made,  was  obviously  with  a  view  to  raise  money  only, 
and  could  not  by  any  argument  be  made  to  supply  an  inference,  that  it 
was  done  with  a  view  to  prevent  Dower:  yet  the  latter  circumstance 
might  perhaps  be  considered  as  deserving  more  weight;  for,  if  the  trus- 
tee, who  was  himself  the  mortgagee,  by  misapplying  the  personal  estate 
of  the  testator,  and  the  rents  and  profits  of  his  real  estate,  was  himself 
the  cause  of  the  mortgage  standing  out,  and  made  this  a  reason  to  hold 
back  the  conveyance  of  the  legal  estate,  according  to  the  directions  of 
the  testator,  there  seems  as  much  occasion  for  the  application  of  the  rule 
of  equity  of  considering  that  as  done  which  ought  to  be  done  m  order 
to  let  in  the  widow,  in  equity,  to  the  same  degree  of  title  notwithstand- 
ing the  mortgage,  as  she  would  have  had  if  the  trustee  had  conveyed  the 
estate  to  the  husband  at  the  time  directed,  as  there  was  for  the  application 
of  it  for  that  purpose,  notwithstanding  a  trust. 

"  And   it  is  observable  that  in  this  point  of  view,  the  cases  of  Banks 
V.  Sutton  and  Dixon  v.  Sir  Geo.  Saville,  are  perfectly  reconcileable,  and 
^  may  stand  *together,  the  former  being  considered  as  esta- 

[  140  J  ^igj^jj-jg  |-i^g  general  principles  of  law,  that  the  wife  of  one 
entitled  to  an  equity  of  redemption  of  a  mortgage  in  fee,  shall  not  be 
entitled  to  Dower  out  of  such  estate;  the  latter,  as  an  exception  to  that 
general  rule,  as  falling  under  another  and  distinct  principle  of  equity. 
Sed  quxre.^\d) 

These  observations,  of  the  value  of  which  Mr.  Powell  himself  appears 
to  have  entertained  doubts,  will  probably  be  considered  as  disposed  of 
by  the  result  of  the  authorities  already  considered  as  to  trusts. 

The  case  of  a  mortgage  for  years,  differs,  as  relates  to  Dower,  in  this, 
that  there  is  a  legal  reversion  to  which  the  equity  of  redemption  is  knit, 
and  of  which  legal  reversion  the  wife  is  dowable.  As  it  is  the  doctrine 
of  courts  of  Equity,  that  every  person  having  an  interest  in  the  reversion 
shall  have  an  equivalent  interest  in  the  equity  of  redemption,  the  dowress 
may  consequently  redeem  the  mortgage.  This  point  will  be  considered 
in  a  subsequent  chapter,  which  treats  of  the  nature  and  incidents  of  an 
estate  in  Dower. 


1^    *141    ]  *CHAPTER  VIII. 

Of  the  circumstances  under  which  a  title  op  dower  will  be  de- 
feated after  having  once  attached. 

It  has  been  already  shown  that  titles  of  Dower  attach  upon  estates  of 
inheritance,  notwithstanding  those  estates  are  defeasible  by  reason  of  de- 
fect of  title.(a)  But,  Dower  being  an  interest  annexed  to  the  defeasible 
estate,  the  avoidance  of  the  right  to  that  interest  is  consequential  upon 


{d)  2  Pow.  Mort.  731.  (a)  See  p.  37,  50,  supra. 


TITLES  OP  DOWER  HOW  DEFEATED. 


65 


the  restoration  of  the  seisin  under  the  prior  title.(6)  In  these  cases,  the 
seisin  of  llie  hiishiind  is  not  merely  determined,  hut  it  is  defeated;  or,  as 
the  old  hooks  still  more  expressively  term  it,  disairirmed.  The  restora- 
tion of  the  ori^^iiial  seisin  is  not  eonsidered  as  merely  a  f^iviii^;  hack  to 
the  owner  of  that  which  had  heon  unjustly  taken  from  him,  with  all  the 
prejudice  of  an  intermediate  ownership,  hut,  in  intendment  of  law,  it  is 
considered  as  purging  and  aholishins;  the  intermediate  seisin,  and  all  its 
consequences,  and  for  purposes  of  title,  negativing  the  existence  of  such 
seisin.  The  person  having  the  right  is  not  to  he  merely  restored,  hut 
he  is  to  be  placed  i)i  si  a  hi  rjuo.(c) 

Therefore,  if  the  owner  of  an  estate  is  disseised,  and  the  disseisor 
marries,  and  afterwards  the  disseisee  enters  upon,  or  recovers  against 
the  disseisor,  *thc  title  of  Dower  in  the  wife  of  the  disseisor  j-  *i^2  1 
is  therchy  defeated ;(<^/)  and  if  the  disseisor  had  died  seised,  L  J 

and  his  heir  had  actually  endowed  the  wife,  and  the  disseisee  had  re- 
covered the  lands  by  judgment  against  the  heir  and  dovvress,  the  estate 
of  the  dowress  would  he  at  an  end.(e)  So,  if  a  man  seised  in  right  of 
his  wife,  before  the  statute  of  32  Hen.  VIII,  c.  28,  made  a  discontinu- 
ance of  his  wife's  lands,  and  after  his  death,  the  wife  recovered  the  lands 
against  tlic  disconlinucc,  the  wife  of  the  discontinuee  should  not  have 
Dower  of  these  lands,  for  the  seisin  of  her  husband  was  defeated  bv  elder 
title.  (/)  ' 

The  wife  of  a  bargainee  or  releasee  of  a  tenant  in  tail,  is  in  like  man- 
ner defeated  of  her  Dower  by  the  entry  of  the  issue.(^)  In  a  note  to 
Mr.  Serjeant  Williams's  edition  of  Saunders's  Reports,(A)  Margery 
Cally's  case  (24  E.  III.  2S.  b.)  has  been  cited  with  disapprobation,  as 
*inconsistent  with  this  doctrine.  «  In  that  case  (the  learned  ^  .^^^^  -. 
Serjeant  remarks),  the  tenant  in  tail  who  had  released  to  l-  J 

the  husband  of  the  demandant  in  fee,  was  dead,  and  the  demand  of 
Dower  was  against  the  issue  in  tail,  tvho  had  entered,  and  thereby  de- 
termined the  estate  in  fee  out  of  which  the  Dower  was  claimed."  Mar- 
gery Cally's  case,  however,  is  strictly  consistent  with  the  general  prin- 
ciple of  law  on  this  head.  That  case  was  determined  upon  another 
ground,  overlooked  by  the  learned  editor  of  Saunders,  that  the  lease  and 
releas'j  of  the  tenant  in  tail  being  icitli  warranty,  was  considered  to 
work  a  discontinuance,  and  therefore  the  entry  of  the  issue  was  not  con- 
geable.     The  case  is  correctly  stated  belovv.(/) 

(i)  Gilb.  Uses.  399.  (c)  See  Litt.  sec.  358  ;  1  Roll.  Abr-  474,  &c. 

((/)  Countess  of  liarkshire  ▼.  Vanlorc,  Winch.  77. 

(e)  As  to  the  lands  assigned  to  the  wife  in  dower,  it  is  not  nece.«sary  that  the  disseisee 
should  resort  to  a  real  action,  notwithstanding  a  descent  cast,  for  the  endownient  defeats  the 
descent  7Hoari  those  lands,  and  the  disseisee  may  therefore  bring  ejectment  against  the  dow- 
ress. See  Co.  Litt.  240.  b.  But,  "  if  after  the  dying  seised  of  the  disseisor,  the  disseisee 
abate,  against  whom  the  wife  of  the  disseisor  recover  by  confession  in  a  writ  of  dower,  in 
that  case,  though  the  descent  be  avoided,  yet  the  disseisee  shall  not  enter  upon  the  tenant 
in  dower,  because  the  recovery  was  against  himself;  but,  if  he  had  assigned  dower  to  her  in 
pais,  some  say  he  should  enter  upon  her.     Ih.  -41.  n. 

(  f)  Dyer.  41.  a.  citing  a  case  in  the  time  of  Ed.  1.  In  that  case,  the  wife  of  the  dis- 
continuee recovered  her  dower  for  bad  pleading  on  the  purt  of  the  tenant,  "  which  she  could 
not  have  done  (adds  Dyer)  had  the  pleadings  been  good.' 

(g)   10  Co.  9G.  a.  98.  a.  in  Seymour's  ease.         (/«)   Vol.  l.p.  2G1.  a. 

(i)  Dower,  land  was  given  to  husband  and  wife  in  tail,  who  had  issue  two  sons;  the  baron 
dies,  the  feme  makes  a  lease  for  years  to  the  eldest  son,  and  afterwards  releases  to  him  all  her 
right  7uith  warrarili/  to  him  and  his  heirs,  and  he  takes  a  wife,  and  dies  in  the  lifetime  of  his 

Vol.  XL— 2  G 


66  PARK  ON  DOWER. 

The  law  of  remitter  affords  another  example  of  the  avoidance  of  the 
title  of  Dower,  attended  with  the  peculiarity  that  the  seisin  of  the  hus- 
band, and  consequently  the  title  of  Dower,  is  defeated  in  the  instant  of 
his  death.     Thus,  if  a  man  seised  in  tail  general,  discontinues  in  fee,  and 
^  -,  takes  back  an  estate  *in  fee  simple,  and  afterwards  takes  a 

[  144  J  ^yjfg^  ^pj  Y\as  issue,  and  dies,  the  title  of  Dower  which  at- 
tached upon  the  seisin  of  the  fee,  is  defeated  by  the  remitter  of  the  issue 
to  the  estate  tail;(A!)  for  the  seisin  of  the  fee  being  cast  upon  the  issue, 
immediately  upon  the  death  of  the  husband,  the  issue  is  consequently 
restored  to  the  estate  tail,  and  thus  the  seisin  of  the  fee,  with  all  its  in- 
cidents, is  defeated,  or,  as  Lord  Coke  emphatically  expresses  it,  "  van- 
ished bv  the  remitter,"  to  the  same  extent  as  if  the  issue  had  recovered 
by  formedon.  So,  if  lands  are  given  to  husband  and  wife  in  special  tail, 
who  discontinue  by  fine  sur  grant  and  r-ender  at  the  common  law,  and 
retake  an  estate  in  tail  general,  and  have  issue,  and  the  wife  dies,  and 
the  husband  marries  a  second  wife  and  dies,  in  this  case  also  the  title  of 
Dower  of  the  second  wife  is  defeated  by  the  remitter.(/)  But,  it  is  said, 
that  if  in  such  case,  a  stranger  abates  upon  the  death  of  the  husband,  the 
issue  may  bring  a  formedon  of  which  estate  tail  he  will;  and,  if  he  brings 
his  action  of  the  gift  by  which  the  wife  should  be  dowable,  he  shall  not 
be  remitted,  and  the  wife  shall  have  her  Dower. (m) 

A  similar  case  of  remitter  is  cited  by  Fitzherbert,  in  the  instance  of  a 
man,  who  having  a  right  of  action,  disseises  the  tenant,  and  dies  seised, 
whereby  his  heir  is  remitted,  and  the  wife's  title  to  Dower  consequently 
defeated,  "  for  that  estate  which  the  *husband  had  is  deter- 
L  J  mined,  for  that  was  an  estate  in  fee  by  wrong,  and  the  heir 

hath  the  estate  in  fee  which  his  ancestor  had  by  right."(n) 

It  is  an  important  point  in  pleading,  that  in  these,  and  most  other 
cases  of  the  same  nature,  where  there  was  a  seisin  in  the  husband  during 
the  coverture,  but  which  seisin  has  been  defeated,  the  tenant  to  the  writ 
of  Dower,  mw^i  plead  the  special  matter,  as  the  remitter,  &.c.  and  cannot 
o-ive  it  in  evidence  upon  the  general  issue  of  ne  unques  seisie  que  Dower, 
&c.;  for,  upon  that  issue,  the  charge  of  the  jury  is  solely  upon  the  seisin, 
and  they  must  find  for  the  demandant,  (o) 

It  has  been  already  stated,  that*  a  recovery  by  judgment  against  the 
husband  in  a  real  action,  defeats  the  title  of  Dower  of  the  wife.  This 
proposition  must,  however,  be  understood  as  confined  to  recoveries  by 
actual  title,  and  does  not  extend  to  feigned  or  common  recoveries.  By 
the  statute  of  Westminster  2,  c.  4,  it  is  recited,  that  by  the  common  law, 

mother,  without  issue,  and  after  the  mother  dies,  and  the  second  son  enters,  and  the  feme  of 
the  eldest  son  brings  writ  of  dower  and  recovers  judgment,  24  E.  3.  28;  Bro.  Dow.  pi.  50. 
This  case  was  indeed  considered  doubtful  at  the  time,  upon  the  question  whether  the  release 
■with  warranty  did  work  a  discontinuance,  for  it  seems,  adds  the  book,  that  the  release  with 
warranty  of  the  tenant  in  tail,  is  only  a  grant  of  her  estate,  and  although  she  gave  a  fee, 
yet  the  younger  son  is  remitted  to  the  tail,  which  is  paramount  the  title  of  the  feme  now 
demandant. 

(Jt)  Fitzh.  N.  B.  149  (F.)  (cites  41  E.  3.  30.)  Dyer.  41.  a.;  and  see  1  Leon.  37,  in  Par- 
tridge V.  Partridge,  Co.  Litt.  31.  b.;  Gilb.  Uses.  393;  1  Leon.  66. 

(/)  Bro.  Dow.  pi.  14  (cites  44  E.  3.  26.) 

(m)  Hughes  Writs.  152  (cites  46  E.  3.  24.) 

(n)   F.  N.  B.  149.  (F)  (cites  16  E.  3.  21.)  Gilb.  Dow,  393  (cites  10  E.  3.  27.) 

(o)  Dyer.  41 .  a.;  1  Leon.  66  ;  Co.  Litt.  31.  b.  Osmond's  case,  Noy,  66  ;  but  see  Countess 
of  Berkshire  v.  Vanlore,  Winch.  77,  contra. 


I 


TITLES  OP  DOWER  HOW  DEFEATED.  67 

where  a  husband  being  impleaded,  had  given  up  llie  land  demanded  to 
his  adversary,  dc  piano,  viz.  by  rcddition,  the  justices  upon  a  writ  of 
Dower  brouj>;ht  by  the  wife  would  adjuilge  her  iicr  Dower,  ]iut  that 
wheFc  iIh!  land  was  lost  by  default,  there  was  a  difference  of  opinion; 
some  justices  holding  that  the  widow  was,  and  others  that  she  was  not 
*entitled  to  Dower.  To  remove  this  doubt,  it  was  declared  -  ,,  .^  -, 
by  that  statute,  that  in  both  cases  the  woman  demanding  her  ^  J 

I)ovver  should  be  heard;  and  if  it  was  alleged  against  her  that  her  hus- 
band lost  (he  land  by  judgment,  so  that  she  ought  not  to  have  any  Dower, 
and  upon  inc]uiry  it  was  fountl  to  he  a  judgment  by  default,  then  that  the 
tenant  should  further  show  that  he  hoti  and  hath  right  in  the  land  ac- 
cording to  the  writ  wliich  he  had  brought  against  tlie  husband;  and  if 
he  proved  the  husband  had  no  right,  nor  any  one  but  himself,  then  that 
the  judgment  should  be  quod  tencns  reccdut  quietus,  and  quod  uxor 
nihil  capiat  de  dote;  but  if  he  could  not  show  that,  then  that  the  woman 
should  have  judgment  quod  7'ecuperet  dotcm  suam. 

Perkins  remarks,  that  the  statute  of  Westminster  2,  cap.  4,  is  but  a 
recital  of  the  common  law;  "  for,  the  common  law  ougiit  to  i)e  intended 
where  the  husbaufl  had  right,  and  he  who  rccovereth  no  riglit;  and  so  is 
the  law  at  this  day,  if  the  husband  lose  by  default,  &c.  And  so  was  the 
common  law  before  the  making  of  that  statute;  so  that  statute  is  but  an 
aflfirmancc  of  the  common  law  on  that  point.(/;)  And  therefore,  at  the 
common  law,  before  the  making  of  that  statute,  if  a  man  had  been  seised 
of  land  in  fee  by  a  rightful  title,  take  a  wife,  and  is  disseised,  and  re- 
enterctii  upon  his  disseisor,  and  his  disseisor  arraign  on  assize  against 
him,  and  he  confess  the  disseisin,  and  the  disseisor  relcaseth  the  damages, 
and  hath  judgment  to  recover,  and  entercth,  and  the  husband  dieth,  his 
wife  shall  recover  *her  Dower  against  him  who  recovered  ^  *]j7 
in  the  assize  by  the  common  law;  because  that  her  husband  L  J 

had  right,  and  he  who  recovered  no  right.(</)  And  if  a  disseisor  be  of 
land,  who  takcth  a  wife,  and  the  disseisee  reieaseth  all  his  right  unto  the 
disseisor,  and,  notwithstanding  that,  brings  a  writ  of  entry  in  nature  of 
an  assize  against  the  disseisor,  and  rccovereth  by  default,  and  the  dis- 
seisor tlielh,  his  wife  may  recover  her  Dower  against  the  disseisee,  be- 
cause at  tliis  time  her  husband  had  right  by  the  release,  and  the  dis- 
seisee no  right.(/')  But  if  he  who  rccovereth  by  reddition  or  by  default 
had  right,  then  it  shall  be  otherwise.  And  therefore,  if  the  heir  of  a 
disseisor  of  land  be  in  by  descent,  upon  whom  the  disseisee  doth  enter, 
and  taketh  a  wife,  against  whom  the  heir  of  the  disseisor  doth  recover  by 
retldition,  or  by  default  in  a  ivrit  of  entry  in  the  nattire  of  an  assize, 
and  the  lmsl)and  die,  in  this  case  his  wife  sliall  not  recover  her  Dower 
by  wi'it,  because  he  that  recovered  had  right  unto  the  possession  accord- 
ins^  to  the  )iaturc  of  his  action;  and  tiie  husband  was  not  seised  of  other 
possession  during  the  coverture  but  of  that  possession  which  is  destroyed 
and  defeated  by  the  recovery. (*)  But,  if  a  man  seised  of  land  in  fee, 
take  a  wife,  and  is  disseised,  and  the  disseisor  dieth  seised,  and  his  heir 
is  in  by  descent,  upon  whom  the  disseisee  doth  enter,  against  whom  the 
heir  of  the  disseisor  doth  recover  by  reddition,  or  by  default  in  a  writ  of 
entry  in  tlie  nature  of  an  assize,  and  the  husband  dieth,  his  wife  shall 

{p)  Perk.  sec.  376.  (7)  Perk.  sec.  377. 

(r)  Ibid.  sec.  378  (cites  JVI.  15  E.  3.  30.)      {s)  Ibid.  sec.  379 ;  and  see  2  Inst.  35 J. 


68  PARK  ON  DOWER. 

r  *l  49  1  ^^^^^^^  ^6^  Dower  *not withstanding  that  he  who  recovered 
•-  -^  had  right  unto  the  possession  according  to  the  nature  of  his 

action;  and  the  reason  is  because  the  husband  had  an  ancient  seisin  dur- 
ing the  coverture  before  the  writ  brought  in  which  the  recovery  was,  by 
force  of  which  seisin  the  wife  had  title  to  have  Dower,  and  the  ancient 
seisin  is  not  defeated  and  destroyed  by  the  recovery."(^) 

It  will  be  seen  from  the  two  latter  of  these  cases,  that  under  the  com- 
plicated modifications  of  seisin  contemplated  by  the  old  black-letter  law, 
it  sometimes  happened  that  the  seisin  of  the  husband  which  he  had 
during  the  coverture  would  be  defeated,  and  so  the  wife's  title  of  Dower 
avoided,  though  the  right  remained  in  him;  and  at  other  times,  that  the 
Dower  would  be  preserved,  although  the  seisin  was  defeated  in  like 
manner,  by  reason  that  some  distinct  seisin  had  attached  in  the  husband 
at  a  previous  time  during  the  coverture,  and  which  the  nature  of  the 
aetion  by  which  his  subsequent  seisin  was  defeated  did  not  reach.  It  is 
to  be  observed,  that  in  the  case  put  by  Perkins  in  sect.  379,  the  husband 
is  disseised  before  marriage,  and  in  the  following  section  not  till  after 
marriage.  Now,  as  the  right  of  entry  upon  the  disseisor  was  taken 
away  by  the  descent  cast,  and  as  a  man  cannot  be  remitted  on  his  own  tor- 
tious entry,  when  the  husband  enters  upon  the  heir  he  acquires  a  wrong- 
ful seisin,  distinct  in  the  one  case  from  his  right,  and  in  the  other  from 
his  ancient  seisin,  and  therefore  defeasible  by  re-entry,  or  recovery,  in 
r  *idq  1  ^  possessory  action.  In  the  *former  case,  the  wife  cannot 
•-  -"be  endowed  because  the  only  seisin  which  the  husband  had 

during'  the  coverture  is  avoided  by  superior  title;  and  of  the  right  of 
action  she  is  not  dowable;  in  the  latter  case,  the  ancient  rightful  seisin 
of  the  husband  being  untouched  by  the  recovery  in  the  possessory  ac- 
tion, supports  her  right  to  be  endowed  against  the  recoveror. 

It  appears  also  that  although  the  husband  had  not  right  to  the  lands, 
yet,  if  a  degree  was  past,  so  that  he  had  acquired  aJiispossessw?iis,  and 
the  action  brought  against  him  was  only  a  possessory  action,  or  in  other 
respects  was  not  such  as  the  land  could  be  recovered  upon,  unless  by 
laches  of  pleading  in  the  husband,  the  wife  may  falsify  this  recovery. 
As  "  if  a  disseisor  be  of  one  acre  of  land,  and  the  disseisor  dieth  seised, 
and  his  heir  enter  and  taketh  a  wife,  and  the  disseisee  doth  recover  the 
land  against  the  husband  by  default  in  a  writ  of  entry  ad  termimtm  qui 
prspteriit^  and  the  husband  die,  his  wife  shall  falsify  this  recovery  in  a 
writ  of  Dower."(^f)  So  that  the  wife  may  falsify  not  only  where  the 
recoverer  had  not  right  to  the  land,  but  where,  although  he  had  right  to 
the  land,  he  had  not  right  to  recover  by  the  particular  action  in  which 
he  obtained  judgment.  And  generally,  for  false  pleading  in  the  hus- 
band, where  he  might  have  pleaded  in  bar  to  the  action,  and  not  merely 
in  abatement,  the  wife  may  falsify.  As  "  if  in  a  writ  of  entry  en  le post 
(-  *,  -Q  -]  against  the  husband,  he  vouch  himself  to  save  the  tail,  and 
L  -'  siieweth  for  cause  that  his  father  gave  the  *same  land  unto 

him  in  tail,  and  that  the  reversion  is  descended  unto  him  from  his  father 
and  the  demandant  traverseth  the  gift,  which  is  found  with  him,  by  rea- 
son whereof  he  doth  recover,  and  the  husband  dieth,  now,  if  the  husband 
liad  a  release  of  all  actions,  or  of  all  the  right  of  the  demandant,  to  plead, 

(0  Terk.  e.-c.  330  (cites  H.  14  H.  4.  31.  H.  5  E.  3.  7.) 
(m)  Perk.  sec.  384. 


TITLES  OF  DOWER  HOW  DEFEATED.  69 

and  did  not  plead  the  same,  his  wife  shall  falsify  this  recovery  in  a 
writ  of  Dower,  (r)  And,  if  tenant  in  tail  of  land  hath  issue,  and  dieth, 
and  a  straniror  al)ateth  and  diclh  seised,  and  his  heir  is  in  by  descent, 
who  takelh  a  wife,  and  the  issue  in  tail  hrin;;  an  assize  oi  'niort-(r ances- 
tor af^aiiist  the  husband,  who  traverselh  the  ]joints  of  the  writ,  which 
are  found  for  the  demanchuit,  by  force  of  whicii  he  doth  recover  and 
entereth,  and  the  husband  dieth;  in  this  case  it  bath  ijeen  said  that  the 
wife  shall  not  recover  Dower  of  tiiis  land,  before  that  this  verdict  be 
attainted  by  the  heir  in  a  writ  of  attaint.  Yet,  it  seemeth  she  shall  fal- 
'  sify  this  recovery  in  a  writ  of  I>ower,  immediately  after  the  death  of 
her  husband;  forasmuch  as  her  husband  mijirbt  have  pleaded  unto  the  ac- 
tion of  the  writ  of  the  demandant,  and  she  cannot  have  an  attaint.  And 
if  she  shall  stay  imtil  the  heir  hath  defeated  the  verdict  by  attaint,  then, 
perhaps,  the  heir  will  release,  &c.  or  ])erhaps  will  not  sue  an  attaint;  and 
so  the  wife  in  despite  of  herself  shall  loose  her  Dower;  which  is  not 
reasonable  when  she  was  once  entitled  to  have  Dower  by  the  possession 
of  her  husband  during  the  coverture;  whicii  possession  had  never  been 
avoided,  if  not  by  the  laches  or  pleading  of  the  husband;  ^  »i<5i  t 
because  *he  might  have  pleaded  unto  tiie  action  of  tlie  writ  ^  -' 

of  the  demandant,  &c.  lumen  qiixrc;  because  that  the  judgment  is 
given  upon  the  verdict:  within  which  verdict  is  found  matter  contrary 
and  repugnant  to  the  matter  which  ought  to  be  pleaded  to  the  action  of 
the  writ,  &c.  but  if  the  entry  of  tlic  demandant  had  been  lawful,  then 
the  law  is  clear,  and  without  question,  that  the  wife  shall  not  falsify; 
for  then  the  demandant  had  been  remitted  by  his  entry."(i^')  "  But  it 
is  to  know  that  a  demandant  in  a  writ  of  Dower  shall  not  falsify  a  re- 
covery had  against  her  husband  by  default,  for  laches  of  her  husband  in 
not  pleading  a  plea  which  goeth  merely  in  abatement  of  the  writ,  if  not 
that  it  be  in  special  cases.  And  therefore,  to  say  that  her  husband 
might  have  pleaded  misnomer,  &c.  or  jointenancy,  &c.  are  not  causes  to 
falsify  a  recovery.(a:)  But  if  she  shew  matter  proving  that  the  demand- 
ant had  not  right,  nor  cause  of  action,  if  not  jointly  witii  a  stranger,  the 
which  stranger  by  his  deed  of  release,  which  she  sheweth  forth,  hath 
released  all  his  right  unto  her  husband  (then  tenant  of  the  land.)  before 
the  action  brought  by  the  demandant,  this  is  a  good  matter  to  falsify  the 
recovery  for  one  moiety  of  the  land  recovered.  So  shall  it  be  of  all  such 
like  cases. "(y)  "  And  it  is  to  know,  if  in  a  jM-ucipc  brought  against  the 
husband  he  plead  misnomer,  which  is  found  against  him,  by  force  of 
which  the  demandant  doth  recover,  sucli  recovery  shall  not  oust  the 
wife  of  her  Dower,  if  the  demandant  had  not  right.  And  ^  *\^2  ^ 
if  in  *a  precipe,  &c.  against  the  husband,  the  husband  plead  •-  J 

jointenancy,  &:c.  which  is  found  against  him,  by  force  of  which  the  de- 
mandant doth  recover,  this  recovery  shall  not  oust  the  wife  of  her  Dow- 
er, unless  the  demandant  had  right. "(r) 

It  will  appear  from  the  last  passage,  that  the  wife  may  falsify  re- 
coveries by  action  tried,  as  well  as  recoveries  by  reddition  and  default. 
This,  however,  must  be  understood  with  the  (jualification,  that  the  fidsi- 
fication  is  in  another  point  than  the  point  which   was  tried.     Thus, 


(v)   Perk.  sec.  382  (cites  E.  12  E.  4.  140.) 

(w)  Perk.  sec.  383.  (.r)  Perk.  sec.  385. 

iy)  Ibid.  sec.  386.  (i)  Perk.  sec.  381  (cites  H.  5  E.  3. 

2   a  2 


70  PARK  ON  DOWER. 

where  the  husband  pleads  dilatory  pleas,  as  in  the  cases  put  by  Perkins, 
the  wife  may  falsify,  for  this  recovery  does  not  disaffirm  the  possession 
of  the  husband,  (a) 

It  may  be  useful  to  remark,  that  in  all  such  cases  of  falsification  of 
recoveries  suffered  by  husbands,  by  their  widows,  the  widow  shall 
falsify  the  recovery  as  to  her  title  of  Dower  only,  and  no  longer  or  fur- 
ther. (6) 

The  implied  special  warranty  upon  an  exchange  af  common  law, 
affords  another  instance  of  the  avoidance  of  the  title  of  Dower  by  the 
seisin  of  the  husband  being  defeated  by  title  paramount.  For  if  A.  and 
B.  exchange,  and  B.  marries,  and  A.  is  evicted  of  the  land  taken  in  ex- 
change, he  may  recover  in  value  against  B.  the  land  given  in  exchange, 
P  *i  f?q  -|  snd  the  wife  of  B.  will  thereby  lose  her  Dower,  for  the  re- 
'  -^  covery  in  value  is  paramount  the  title  of  Dower,  *by  rela- 

tion to  the  time  of  the  exchange  made,  which  was  before  the  marriage,(c) 
The  same  law  is  stated  as  applicable  to  a  partition  between  coparceners 
in  gavelkind,  where,  if  one  is  impleaded,  and  prays  in  aid  of  the  other, 
and  the  demandant  recovers,  the  tenant  shall  have  ]j)'o  rata  of  that 
which  remains,  unaffected  by  the  Dower  of  the  other  coparcener's  wife, 
because  the  title  of  the  coparcener  who  had  pro  rata,  shall  have  relation 
to  the  time  of  the  death  of  the  ancestor,  (c?) 

But  if  a  man  recovers  by  way  of  recompense  in  value,  against  the 
husband,  by  a  warranty  ancestrel,  the  wife  shall  be  endowed,  because 
the  recovery  there  is  simply  by  force  of  the  warranty,  and  not  by  reason 
of  any  elder  title  to  the  land,  and  so  the  land  is  bound  only  from  the 
time  of  the  judgment. (e)  The  warranty  here  is  only  a  collateral  charge, 
and  not  a  specific  lien  upon  the  land,  as  in  the  case  of  an  exchange  or 
partition. 

The  doctrine  of  the  common  law  as  to  evictions  by  title  paramount, 
applies  also  to  persons  re-entering  by  force  of  conditions,  for,  on  the 
condition  being  called  into  operation,  the  estate  defeated  by  it  is  con- 
sidered as  void  ah  initio,  and  the  entry  of  the  feoffor  has  relation  to  the 
time  of  the  feoffment  made. 

r  *i  ^14  1  Therefore,  if  there  be  tenant  in  fee,  or  in  tail,  ^upon  con- 
L  -J  dition,  and  the  feoffor  enters  for  breach  of  condition,   or  if 

there  be  a  feoffment  in  fee  upon  condition,  to  be  performed  by  the  feoffor, 
who  duly  performs  the  condition,  the  wife  of  the  feoffee  is  defeated  of 
her  Dower.  (/) 

It  should  also  be  remarked,  that  although  only  a  portion  of  the  estate 
of  the  husband  is  defeated  by  force  of  the  condition,  as  where  the  con- 
dition is  annexed  to  the  freehold  only,  yet  as  the  operation  -^f  that  con- 
dition deprives  the  estate  of  that  quality  in  respect  of  which  the  wife  is 
dowable,  and  converts  it  into  an  estate  in  remainder  or  reversion,  while 


(a)  See  Bro.  Dow.  pi.  24,  26 ;  Bro.  Restore,  &c.  pi.  1. 

(6)  Shep.  T.  49. 

(c)  2  Roll.  Vouch.  (R.  b.)  pi.  4.  Perk.  sec.  309  (cites  M.  4  E.  3.  52.  T.  5  E.  3.  129.) 

(,/)   Perk.  sec.  310. 

(e)  Fiizh.  N.  B.  150  (D.)  (cites  3  E.  3.  Dow.  139,  149.)  Gilb.  Uses,  399 ;  Hughes 
Writs,  162. 

(/)  1  Roll.  Abr.  474;  Perk.  sec.  311,  312,  317;  Ley,  299,  arg.  But  in  this,  as  in 
many  other  cases  already  mentioned,  the  special  matter  must  be  pleaded,  for  upon  the  issue 
of  ne  iinques  seisie  que  do-uier,  the  jury  must  find  for  the  demandant.     Dy.  41,  a.;  Noy.  66. 


TITLES  OF  DOWER  HOW  DEFEATED.  71 

the  former  seisin  of  the  freehold  is  disaffirmed  hy  the  entry  for  breach 
of  condition,  the  title  of  Dower  is  equally  avoided  as  where  the  whole 
estate  is  defeated.  In  the  cases  already  put,  of  lessee  for  life  surrender- 
ing to  the  reversioner  upon  con<lition,(^'-)  wliereliy  the  wife  (jf  the  rever- 
sioner hccomes  dowahle,  if  the  lessee  enter  for  condition  broken,  the  title 
of  Dower  is  defeated. (A) 

To  the  same  i)rinci|)le  is  to  be  referred  the  case  put  by  Lord  Coke 
— "  If  there  be  fi;randfatlier,  father,  and  son,  and  the  fi;randfather  is  seised 
of  three  acres  of  land  in  fee,  and  taketh  wife,  and  dicth,  tliis  land  dc- 
sccndeth  to  the  father,  who  dieth  either  before  or  after  entry,  now  is 
the  wife  of  the  father  dowahle.  The  father  dieth,  and  the  wife  of  the 
grandfather  is  "endowed  of  one  acre,  and  dieth,  the  wife  of  ^  »i5f  i 
the  father  shall  be  endowed  only  of  the  two  acres  residue,  L  J 

for  the  Dower  of  the  grandmother  is  paramount  the  title  of  the  wife  of 
the  father,  and  the  seisin  of  the  father  which  descended  to  him  (be  it  in 
law,  or  actual,)  is  defeated;  and  now  upon  the  matter,  the  father  had 
but  a  reversion  expectant  upon  a  freehold,  and  in  that  case  Do's  de  dote 
peti  non  debet,  although  the  wife  of  the  grandfather  dieth  living  the 
lather's  wife."(/) 

But  if  the  father  had  taken  by  purchase,  instead  of  by  descent,  and 
been  seised  previous  to  the  consummaiion  of  the  grandmother's  title  of 
Dower,  this  seisin  would  not  have  been  defeated  by  the  subsequent  en- 
dowment. Lord  Coke  adds,  "  Here  note  a  diversity  between  a  descent 
and  a  purchase.  For,  in  the  case  aforesaid,  if  the  grandfather  had  en- 
feoffed the  fiither,  or  made  a  gift  in  tail  unto  him,  there  in  the  case 
abovesaid,  the  wife  of  the  father,  after  the  decease  of  the  grandfather's 
wife,  should  have  been  endowed  of  that  part  assigned  to  the  grandmother; 
and  the  reason  of  this  diversity  is,  for  that  the  seisin  that  descended  after 
the  decease  of  the  grandfather  to  the  father  is  avoided  by  the  endowment 
of  the  grandmother,  wiiose  title  was  consummate  by  the  death  of  the 
grandfather;  but  in  the  case  of  the  purchase  or  gift  that  took  effect  in 
the  life  of  the  grandfather  (before  the  title  of  Dower  of  the  grandmother 
was  consummate)  is  not  defeated,  but  only  quoad  the  grandmother,  and 
in  that  *casc  there  shall  be  Dos  dc  dote.'\/c)  In  the  first  ^  ^^^^  ^ 
instance,  the  seisin  of  the  wife  after  endowment  takes  effect  ^  -^ 

by  relation  from  the  same  instant  of  time  in  which  the  seisin  of  the 
heir  commenced,  namely,  the  death  of  the  ancestor,  and  being  in  point 
of  title  paramount  the  title  of  the  heir,  this  seisin  by  relation  defeats  the 
mesne  seisin  which  was  cast  upon  the  heir,  even  though  that  seisin  was 
perfected  by  actual  entry;  for  the  technical  rule  is,  that  there  is  no 
mesne  seisin  between  the  husband  and  the  tenant  in  Dower:  but  in  the 
latter  case,  the  seisin  which  ihe  father  had  by  force  of  the  feoflment  or 
gift  in  the  life-time  of  the  grandfather  cannot  be  defeated  by  a  seisin  in 
the  grandfather's  wife,  which  even  by  relation  cannot  be  carried  farther 
back  than  the  instant  of  the  death  of  the  grandfather.  If,  therefore,  the 
father  was  married  at  any  time  during  the  existence  of  that  seisin,  and 
before  it  was  turned  into  a  reversion  by  the  endowment  of  the  grand- 
mother, that  seisin  will  confer  a  title  of  Dower  upon  the  wife  of  the 

(j)  Supra,  p.  75. 

(A)  Bui  llio  tenant  must  plead  the  special  nialter.     Osmond  and  Uxor,  Noy,  66, 

(i)  Co.  Liu.  31.  a. 

{h)  ibid,  (cites  5  E,  3.  tit.  Vouchee.  24'J.  Paris's  case,  9  E.  3,  4.)  and  see  Perk.  sec.  315. 


72  PABK  ON  DOWER. 

father,  and  she  will  be  dowable  of  the  third  part,  subject  only  to  the  estate 
of  the  grandmother;  and  therefore,  in  Paris's  case,(/)  where  the  grand- 
father had  given  the  lands  to  the  father  in  tail,  who  died,  and  the  son 
endowed  the  wife  of  the  father  of  the  third  part  of  the  whole,  and  after- 
wards the  grandfather  died,  and  his  wife  brought  her  writ  of  Dower 
against  the  wife  of  the  father,  who  vouched  the  son,  and  the  question 

^  ^  was  of  how  much  she  *should  recover  in  value,  whether  of  a 

[  "^157  J  ti^jrd  of  two  parts,  or  a  third  of  the  whole;  it  was  adjudged 
that  she  should  recover  generally  to  the  value  which  she  lost;  for  Dower 
tolled  the  estate  which  by  law  descended,  but  not  the  estate  acquired  and 
gained  by  purchase. 

But  Dower  must  be  actually  assigned,  in  order  to  defeat  the  mesne 
seisin  of  the  heir.  And  if  the  wife  of  the  ancestor  recovered  Dower  by 
erroneous  judgment  against  A.  and  the  judgment  is  reversed,  although 
after  the  death  of  A.,  it  seems  that  the  mesne  seisin  of  A.  would  be 
revived,  and  consequently  his  wife  will  be  entitled  to  Dower.(m)  And, 
although  there  had  been  no  mesne  seisin,  yet,  if  judgment  had  been  re- 
versed in  the  lifetime  of  A.,  and  the  estate  of  freehold  in  the  wife  of  the 
former  owner  thereby  avoided,  and  the  reversion  turned  into  possession, 
it  is  clear  that  the  wife  of  A.  would  be  dowable.  But  it  seems  that  it  is 
immaterial  that  the  assignment  of  Dower  was  against  common  right.  (?2) 

Where  the  husband  is  seised,  at  any  time  during  the  coverture,  of 
such  an  estate  as  was  in  its  nature  subject  to  the  attachment  of  Dower, 
it  may  be  laid  down  as  a  general  rule,  that  the  title  of  Dower  will  not 
be  defeated  by  the  determination  of  that  estate  by  its  regular  and 
natural  limitation.  To  such  an  estate  Dower  is  a  necessary  incident;(o) 
it  is  by  implication  of  law  so  annexed  to  the  limitation  itself  as  to  form 

.  -,  an  incidental  part  of  the  estate  limited;  *the  prolongation  of 

[  '^ISS  J  ^j^g  estate  therefore  in  the  dowress  is  not  repugnant  to  that 
limitation,  but  strictly  consistent  with  it.(;))  A  simple  limitation  can 
never  operate  to  determine  an  estate  while  any  portion  of  the  interest 
implied  in  that  limitation  is  still  subsisting. 

Thus  if  there  be  tenant  in  fee  of  land,  who  takes  wife,  and  dies  with- 
out heir,  it  seems  his  wife  shall  be  endowed  against  the  lord  claiming 
by  escheat. (^f)  And  if  the  grantee  of  a  rent  in  fee  dies  without  heir, 
his  wife  shall  be  endowed  of  the  rent,  although  it  is  determined;  and 
she  shall  demand  it  of  the  tenant  of  the  land,  who,  although  he  has 
not  the  rent,  yet,  in  fiction  of  law  he  is  tenant  to  the  writ  of  Dower,  to 
avoid  mischief  and  delay;  and,  although  he  has  not  the  rent,  yet  he  has 
the  land  out  of  which  the  rent  issues,  and  the  tenant  of  the  land  pays 

it.(r) 

In  like  manner  it  was  held  by  the  court,  in  Paine's  case,  that  "  at  the 
common  law,  if  lands  had  been  given  to  a  woman,  and  the  heirs  of  her 
body,  and  she  had  taken  a  husband,  and  had  issue,  and  the  issue  died, 
and  the  wife  also  without  issue,  whereby  the  inheritance  of  the  land  did 

{l^  5  E.  3.  Vouch.  249  ;  4  Co.  122.  (m)  7  H.  5.  4 ;  Co.  Litt.  15.  a.  n.  (7.) 

(n)   Hughes  Writs,  149  ;  seep.  ^^.  supra,     (o)  See  p.  82.  supra. 

(  p)  Another  reason  is  assigned  in  one  of  the  books  ;  viz.  that  the  estate  is  determined  by 
the  act  of  God.     Old  N.  B.  144. 

{q)  See  Bro.  Tenures,  pi.  33  ;  Bract.  297.  p.  2.  The  escheat  by  reason  of  crime  turns 
upon  different  principles,  and  there  the  wife  is  not  dowable.     Vide  infra. 

(r)  Jenk.  p.  5. 


1 


AS  TO  DOWER  OP  EXPIRED  ESTATES.  7  3 

revert  to  the  ilonor,  in  that  case  the  estate  of  the  wife  is  determined, 
and  yet  the  husband  shall  he  tenant  by  the  curtesy,  for  that  it  is  tacith 
implied  in  the  gift."(.?)  In  that  *case,  it  was  also  decided,  ^,^^9  i 
that  the  same  doctrine  applied  to  estates  tail  since  the  statute  L  ' 

De  (lonis,  the  title  of  the  husband  to  be  tenant  by  the  curtesy,  and  of 
the  wife  to  be  tenant  in  Dower,  not  being  restrained  by  the  statute. 
Lord  (Poke's  report  of  the  judgment  concludes  in  these  words.  "And 
if  tenant  in  tail  takes  a  husband,  and  halh  issue  and  dies,  now  the  hus- 
band, is  tenant  by  the  curtesy;  and  alihough  afterwards  the  issue  dies 
without  issue,  so  that  the  estate  tail  is  determined,  yet  his  estate  shall 
continue, /or  //  is  not  derived  merely  out  of  the  estate  of  the  wife,  but 
is  created  hy  the  law,  by  p?'iinlei^e  and  benefit  of  lata  tacith  annexed 
to  the  gift. ^'  Consistently  with  the  same  exhibition  of  the  law,  the  con- 
tinuance of  the  estate  of  a  dowress  in  this  case,  is  designated  in  another 
part  of  Coke's  Reports,  as  '■'■  (luodainmodo  a  continuance  of  part  of  the 
estate  tail."(0 

Accordingly,  if  the  donor  enters,  and  docs  not  assign  Dower,  the  wife 
shall  recover  the  third  part  in  Dower  against  him. (w) 

The  rule  that  the  wife  shall  be  endowed  of  an  expired  estate  tail  has 
been  denied  by  Lord  Chancellor  Talbot,  in  the  case  of  Chaplin  v.  Chap- 
lin,(v)  to  apply  to  a  rent  de  novo  granted  in  tail,  but  it  appears  upon  a 
mistaken  impression  of  the  subject.  His  lordship  observed  that  suppos- 
ing a  rent  in  tail  created  de  novo,  the  remainder  in  fee  whereof  was  ex- 
tinguished by  a  limitation  of  it  to  those  who  had  the  *land,  ^  ^  .. 
such  rent  being  determined  by  the  death  of  the  husband  ^  J 
tenant  in  tail  without  issue,  and  having  no  longer  any  existence,  the 
wife  cannot  be  endowed  of  that  which  is  not  in  being.  The  case  of 
Chaplin  v.  Chaplin  was  evidently  taken  up  suddenly,  and  was  ulti- 
mately determined  upon  another  ground.  Upon  the  point  alluded  to 
the  law  is  otherwise.  The  very  case  is  put  by  Jenkins.  "  A  grantee 
of  a  rent  in  fee  or  in  tail  takes  a  wife,  and  dies  without  an  heir,  his 
wife  shall  be  endowed. "(?^)  There  is  indeed  no  real  distinction,  for 
the  purposes  of  Dower,  between  an  estate  tail  in  land,  and  an  estate  tail  in 
rent.  In  both  cases.  Dower  is  incident  to  the  limitation  of  the  estate 
tail,  and  if  it  is  a  part  of  the  interest  comprised  in  the  limitation,  the 
rent  is  as  much  in  esse  as  to  the  dowress,  as  it  was  as  to  the  tenant  in 
tail,  and  it  is  immaterial  that  the  heir  of  the  husband  has  nothing  of 
which  the  wife  can  demand  Dower;  for  had  the  husbnnd  released  the 
rent  to  the  terre-tenant,  there  would  have  been  nothing  tojdcmand  of  the 
heir,  yet  she  might  have  her  w^rit  against  the  terre-tenant;  for,  as  Jen- 
kins remarks  in  the  passage  already  cited,  although  the  tenant  of  the 
land  has  not  the  rent,  yet  he  has  the  huul  out  of  which  tlie  rent  issues, 
and  the  tenant  of  the  land  pays  it. 

The  case  probably  which  occurred  to  Lord  Talbot,  and  which  he 
confounded  with   the  grant  of  a  rent   in  tail,  turns  (juite  upon  another 

(,0  8  Co.  68.  71  (cites  30  E.  1.  Form.  6G.) 

(t)  7  Co.  73.  See  also  Liu.  sec.  .'J3  ;  Co.  LiU.  31.  Z».  241.  a. ;  Perk.  sec.  317.  F.  N.  B. 
149,  (G.);  liro.  Dow.  pi.  86. 

(m)   Perk.  sec.  317.  (r)   3  P.  W.  229. 

(w)  Jenk.  p.  5.  So  also  in  Lord  Ilale's  notes  to  Co.  I. ill.  30,  a.  he  observes  that  if  ft 
rent  de  novo  bo  granted  in  tail,  and  the  wile  dies  without  issue,  the  husband  shall  be  tenant 
by  the  curtesy. 


74  PARK  ON  DOWER. 

principle,  viz.  where  a  rent  is  reserved  upon  a  gift  in  tail,  and  here, 
r  *iRi  1  *without  doubt  the  wife  shall  not  have  Dower  of  the  rent 
[  1"^  J  after  the  estate  tail  is  determined;  but  here  the  estate  of  the 
husband  in  the  rent  is  not  an  estate  tail,  but  a  fee  with  a  determinable 
quality,  in  respect  that  it  is  reserved  on  a  tenancy  in  tail,  and  when  the 
tenancy  is  determined  there  is  no  estate  for  the  reservation  to  act  upon. (a:) 

It  was  admitted  in  Chaplin  v.  Chaplin  that  if  a  rent  in  esse  is  granted 
to  A.  in  tail,  remainder  to  B.  in  fee,  and  A.  marries,  and  dies  without 
issue,  or  if  a  rent  de  novo  is  granted  to  A.  in  tail,  remainder  to  B.  in 
fee  (which  has  been  adjudged  a  good  rent)  and  A.  marries,  and  dies 
without  issue,  in  these  cases  his  wife  should  be  endowed. (3/)  The  ground 
then  of  the  erroneous  distinction  taken  by  Lord  Talbot  clearly  was,  that 
in  the  principal  case  there  was  no  person,  after  the  death  of  the  husband, 
who  had  the  rent  substantively,  and  of  whom,  as  having  it,  Dower  could 
be  demanded  of  it.  Whereas  in  fact.  Dower  being  incident  to  the  estate 
limited  in  the  rent,  and  that  estate  not  having  been  abridged  by  any 
collateral  determination,  the  land  remained  charged  with  the  rent  quoad 
the  Dower,  and  to  the  extent  of  the  one-third,  as  much  as  it  was  charged 
with  the  whole  in  the  time  of  the  husband,  and  it  matters  not  that  there 

*1RP  1  *^'^^^  ^^  person  entitled  to  the  other  two  parts,  as  rent;  but 
L  io*  J  ^j-^  ^|-,g  (,jjgg  Qf  ^  j.gjj^  reserved  upon  an  estate  tail  which  is 
determined,  the  land  itself,  or  at  least  the  estate  in  the  land,  in  respect  of 
which  the  rent  was  payable,  is  gone,  and  there  is  no  person  against 
whom  the  writ  can  be  brought. 

As  a  consequence  of  the  prolongation  of  the  estate  in  these  cases  for 
the  benefit  of  the  dowress,  it  follows  that  all  charges  or  derivative  inter- 
ests created  by  the  tenant  in  tail  prior  to  the  title  of  Dower,  although 
void  as  against  the  reversioner,  or  remainder-man,  will  be  revived 
against  the  dowress,  quoad  the  part  held  in  Dower.  As  in  the  case  put 
by  Coke;  '•'  if  tenant  in  tail  make  a  lease  for  years  reserving  205.,  and 
after  take  a  wife,  and  die  without  issue,  now,  as  to  him  in  the  reversion, 
the  lease  is  merely  void;  but  if  he  endow  the  wife  of  tenant  in  tail  of 
the  land  (as  she  may  be  though  the  estate  tail  be  determined)  now  is 
the  lease,  as  to  the  tenant  in  Dower  (who  is  in  of  the  state  of  her  hus- 
band), revived  again  as  against  her,  for,  as  to  her,  the  estate  tail  con- 
tinueth;  for  she  shall  be  attendant  for  the  third  part  of  the  rent  and  ser- 
vices, and  yet  they  were  extinct  by  act  in  law."(z) 

It  is  understood  that  titles  of  Dower  are  defeated  by  the  determination 
of  estates  of  inheritance  by  the  operation  of  collateral  limitations.  It 
is  clear  law  that  where  a  man  makes  a  gift  in  tail  reserving  rent  to  him 

^  ,  *and  his  heirs,  and  the  donee  dies  without  issue,  the  wife  of 

t      ^^       J  the  donor  shall  not  be  endowed  of  the  rent;(a)  and  if  she  has 
been  previously  endowed  thereof,  her  Dower  shall  cease  by  the  deter- 


(.r)  Vide  infra.  That  a  woman  is  dowable  at  all  of  such  a  rent  seems  to  prove,  that 
notwithstanding  the  statute  de  don'is  has  made  a  rent  reserved  upon  a  gift  in  tail  incident  to 
the  reversion,  so  that  there  can  be  no  estate  in  the  rent  so  far  as  it  is  incident,  yet,  as  against 
the  wife  of  the  donor  claiming  her  dower,  the  rent  is  still  a  rent  in  gross,  the  statute  de  doiiis 
not  extending  to  wives  claiming  dower  or  husbands  claiming  curtesy. 

(v)  And  see  Co.  Litt.  30  a.  S.  P.  as  to  Curtesy. 

(r)  Co.  Litt.  46,  a.  7  Co.  9  a.  (cites  1  Roll.  Abr.  842.  10  E.  3.  26.  34  Ass.  1.5.  23  E.  3. 
Dow.  130.) 

(a)  F.  N.  B.  149,  (G.)  (cites  10  E.  3.  Avowry,  159.)     So  as  to  Curtesy,  Co.  Litt.  30,  a. 


A3  TO  THE  EFFECT  OF  COLLATERAL  LIMITATIONS.  75 

mination  of  the  tenancy.(A)  The  reason  of  this,  according  to  Jenkins, 
is  because  "  this  is  a  collateral  limitation. "(c)  He  adds,  "  So  of  a  grant 
of  rent  or  land  to  one  and  his  heirs  till  the  building  of  St.  Paul's  shall  be 
finished,  if  this  contingency  happens,  Dower  shall  cease;  as  in  the  other 
case,  where,  alter  Dower,  the  donee  dies  without  issue,  where  the  rent 
is  reserved  upon  the  said  gift  in  tail."(r/) 

In  like  manner,  it  has  been  held,  and  is  undisputed  in  law,  that  if  A. 
grants  a  rent  out  of  certain  land  to  li.  and  his  heirs,  provided  that  if  B. 
die,  his  heirs  being  within  age,  that  during  the  non-age  the  terre-tenant 
shall  be  quit  of  the  rent;  and  li.  marries,  and  dies,  his  heir  within  age, 
and  the  wife  of  li.  recovers  Dower  of  the  rent,  execution  shall  be  stayed 
"till  the  heir  comes  to  full  agc.(e)  This  case  shows  that  if  ^  *ifA  -\ 
the  rent  had  been  made  to  cease  absolutely  upon  the  event,  '-  J 

the  Dower  would  have  been  at  an  end. 

The  point  already  stated  as  to  a  gift  in  tail  applies  also  as  to  tenancy 
and  seignory,  as  is  remarked  by  Perkins: — "If  there  be  lord  and  tenant 
by  fealty,  and  the  lord  taketh  a  wife,  and  the  tenancy  escheat  unto  the 
lord,  and  he  enter  and  die;  in  this  case  it  shall  not  be  at  the  liberty  of 
the  wife  to  have  Dower  of  the  seignory  or  of  the  tenancy;  but  she  shall 
be  forced  to  take  Dower  of  the  tenancy:  and  the  reason  is,  because  that 
the  seignory  is  determined  during  the  coverture  by  act  of  law."(y)  But 
it  is  said  that,  in  this  case,  if  the  wife  is  endowed  of  the  seignory,  and 
itfterwards  the  tenancy  escheat,  yet  she  shall  retain  her  Dower  of  the 
seignory :(g-)  as  "if  there  be  lord  and  tenant  by  fealty  and  \2d.  rent, 
and  the  lord  take  a  wife  and  dieth,  and  his  wife  is  endowed  of  the  third 
part  of  the  rent,  and  ihe  tenant  dieth  without  heir,  so  as  the  tenancy 
doth  escheat,  in  this  case  the  wife  shall  not  be  endowed  of  the  tenancy, 
notwithstanding  that  it  come  in  lieu  of  the  seignory,  because  it  was  not 
in  the  possession  and  seisin  of  the  husband,  but  she  shall  retain  the  rent 
which  was  assigned  unto  her  as  a  rent  seek,  and  shall  distrain  of  common 
right."(/i) 

*Both  in  the  case  of  the  rent  reserved  upon  a  gift  in  tail,  ^  »ipr 
and  the  rent  payable  to  the  lord  in  respect  of  the  tenancy,  ^  1"-^  J 
the  reason  assigned  by  Perkins  for  the  avoidance  of  the  title  of  Dower, 
that  the  rent  is  determined  during  the  coverture  by  act  of  law,  is  per- 
haps more  correctly  expressed  than  that  given  by  Jenkins,  viz.  that  it 
is  a  collateral  limitation.  There  is,  however,  little  real  diflerence  be- 
tween these  cases  and  that  of  an  estate  to  a  man  and  his  heirs  till  the 
building  of  St.  Paul's  shall  be  fmished,  except  that,  in  the  latter  instance 

(6)  Arg.  Moor.  39,  pi.  126. 

(c)  Other  rrasons  might  be  found  why  the  dower  should  bo  defeated  in  this  case.  The 
reservation  itself  is  in  respect  only  of  the  tenancy,  and  can  for  no  purposes  exist  longer  than 
the  tenancy.  See  Co.  Litt.  30,  a.  And  thus  "  if  a  man  bo  seised  of  land  in  fee,  and  givcth 
the  same  land  in  tail  unto  a  stranger,  reserving  to  himself  and  his  heirs  I'JJ.  rent,  and  for 
default  of  payment  a  re-entry,  &c.  and  the  donor  taketh  a  wife,  and  dieth,  and  the  heir  of 
the  donor  entercth  into  the  land  for  the  condition  broken,  the  wife  of  the  donor  shall  not  be 
endowed  of  Ihe  rent,  nor  of  the  land."  Perk.  sec.  317,  (cites  M.  44  E,  3.  31.)  The  reason 
of  both  cases  is  the  same. 

((i)  Jenk.  Cent.  1.  Ca.  6. 

(e)  l"'it/.h.  N.  M.  149,  note  (a,)  (cites  12  E.  3.  Dow.  11.  22  E.  3.  19.  10  H.  7.  13.  5  E. 
2.  Dow.  15?.  10  E.  3.  '.il.  4G  E.  3.  24.  12  E.  3.  Cond.  11.)  1  Co.  87,  u.  Perk.  327.  Plow. 
156.  Jenk.  4,  pi.  6.   10  ]\Iod.  307. 

(/•)  Perk.  sec.  321.  (^)  Moore  39,  pi.  126.  Arg. 

(A)  Perk.  sec.  323. 


76  PARK  ON  DOWER. 

the  determination  of  the  estate  is  the  result  of  an  express  collateral 
limitation,  while,  in  the  former  instances,  it  is  the  result  of  a  collateral 
limitation  implied  by  law.  In  this  point  of  view,  the  cases  already  no- 
ticed, where  the  title  of  Dower  is  defeated  by  the  determination  of  the 
estate  out  of  which  it  is  derived  by  reason  of  defect  of  title,  as  in  de- 
terminable fees  carved  out  of  estates  tail,  &c.  may  be  considered  as  fall- 
ing within  the  same  principle.  In  all  these  cases  the  rule  Cessante  sta- 
tu priniitivo  cessat  derivativiis,  applies  to  Dower. 

And  it  may  be  propounded  that  the  operation  of  a  collateral  limitation, 
whether  express  or  implied,  v/ill  defeat  the  title  of  Dower,  as  well 
where  it  converts  the  estate  of  the  husband  into  an  estate  of  mere  free- 
hold, as  where  it  determines  it  altogether.  An  example  of  this  may  oc- 
cur where  the  husband  is  tenant  of  a  determinable  fee  derived  out  of  an 
estate  tail  special,  and  during  the  coverture,  the  determinable  fee  be- 
comes an  estate /J7/r  autre  vie,  by  the  tenant  in  tail  becoming  tenant  in 
tail  after  possibility  of  issue  extinct. 

r  *lfifi  1  ''^^  '  Pi'eston's  erudite  treatise  on  Merger,  this  *point 
L  -I  is  adverted  to,  and   treated  as  doubtful. (e)     "  It  is  clear  (he 

observes)  that  a  woman  is  not  dowable  of  a  mere  estate  for  life,  though 
that  estate  be  descendible,  or  rather  transmissible,  to  the  heirs.  The 
heirs  take  as  special  occupants;  and  as  the  estate  is  not  of  inheritance, 
the  wife  cannot  be  dowable  in  right  of  that  estate.  It  is  equally  clear 
that  a  woman  is  dowable  of  a  determinable  fee,  subject,  except  in  some 
particular  cases,  to  have  her  right  of  dower  defeated  when  the  estate  of 
her  husband  determines.  In  the  case  under  consideration,  the  husband 
may  have  a  determinable  fee  at  one  time,  and  an  estate  for  life  at  ano- 
ther time.  A  seisin  of  the  inheritance  during  the  coverture  will  confer 
a  title  to  Dower.  Can  this  title,  when  it  has  once  attached,  be  defeated 
by  the  change  of  the  estate  of  inheritance  into  an  estate  for  life?  This 
is  the  point  to  be  discussed,  but  it  is  not  easily  solved.  No  decision 
which  throws  any  light  on  the  question  has  been  found.  There  is  rea- 
son to  think  that  as  the  wife  was  once  dowable  of  her  husband's  seisin, 
no  change  in  the  quality  of  her  husband's  estate  will  defeat  that  right  of 
Dower,  as  long  as  the  husband' s  estate  continues.  For  it  should  seem 
the  heir  will  take  by  descent,  as  heir,  and  not  merely  as  occupant:  and 
yet  after  the  failure  of  the  issue  this  is  questionable.  The  wife  claims 
only  on  the  ground  of  a  seisin  of  the  inheritance,  and  not  of  the  estate 
after  it  becomes  a  mere  estate  of  freehold.  Perhaps  it  may  be  contend- 
ed that  the  grantee  has  continually  an  estate  of  inheritance,  even  after 
P  *if^7  1  the  possibility  of  *issue  is  extinct.  But  it  would  be  difficult 
'-,  -"to  maintain   that  proposition,  and,  therefore,  a  wife  whose 

claim  of  Dower  rests  solely  on  her  husband's  seisin,  after  the  possibility 
of  issue  [in  the  tenant  in  tail]  is  extinct,  appears  to  have  but  little  chance 
of  success  in  a  suit  to  establish  a  right  of  Dower." 

With  the  greatest  deference  to  the  source  from  whence  these  obser- 
vations are  derived,  it  is  apprehended  that  the  doubts  suggested  by  them 
will  vanish  before  an  attentive  consideration  of  the  subject.  If  the  title 
of  Dower,  after  having  attached,  is  defeated  by  an  act  of  law  producing 
an  absolute  determination  of  the  estate,  it  follows,  by  parity  of  reasoning, 
that  the  title  of  Dower  will  be  in  like  manner  defeated  by  any  act  of  law 

(t)  3  Prest.  Conv.  173. 


AS  TO  THE  EFFECT  OF  COLLATERAL  LIMITATIONS.  77 

which,  without  absolutely  determining  the  estate,   deprives  it  of  that 
(juality  in  respect  of  which  alone  the  wife  was  dowahle. 

A  case  put  by  Plowden,  though  slightly  distinguishable  in  circum- 
stances, strongly  illustrates  the  present  (juestion.  "If  a  man  makes  a 
gift  in  tail,  rendering  rent,  and  afterwards  the  donor  takes  a  wife,  she 
shall  he  endowed  of  the  rent;  but  if  the  donee  is  a  woftian,  who  dies, 
and  her  husband  is  tenant  by  the  curtesy  of  the  land,  and  afterwards  the 
issue  in  tail  die  without  issue,  now  the  wife  of  the  donor  shall  not  have 
Dower  of  the  rent;  for  her  title  of  Dower  was  to  be  endowed  of  the  rent 
of  inheritance;  and  there  cannot  be  an  inheritance  in  the  rent  longer  than 
the  inheritance  in  the  land  endures;  and  so  the  one  is  in  respect  of  the 
other;  anil  since  her  title  was  to  be  endowed  of  the  rent  of  inheritance, 
and  now  the  rent  is  changed  into  a  rent  *for  life  only,  and  _  *ipQ 
so  is  another  degree,  before  the  execution   of  her  estate,  it  '  J 

shall  never  be  executed,  for  it  would  be  repugnant  in  itself."(Ar) 

It  is  a  point  upon  which  the  authorities  are  not  fully  decisive,  and 
upon  which  practitioners  are  disagreed,  whether  a  title  of  Dower  is  de- 
feated by  the  operation  of  a  conditional  limitation  created  by  way  of  use, 
or  executory  devise.  It  might  have  been  expected  that,  upon  principle, 
the  law  upon  this  head  should  have  been  considered  still  more  clear 
against,  the  right  of  the  dowress  than  in  the  case  of  collateral  limitations, 
the  estate  of  the  husband  being  in  a  more  emphatical  degree  over-reached 
or  defeated  by  the  taking  effect  of  the  limitation  over,  while  the  prior 
estate  has,  from  its  circumstances,  all  the  determinable  quality  of  an 
estate  with  a  collateral  limitation.  The  decisions  have,  however,  in- 
volved this  point  in  much  difficulty. 

It  is  reported  by  Leonard  as  the  observation  of  Anderson,  J.  in  the 
case  of  Sammes  v.  Payne,  that  on  a  limitation  of  this  kind  created  by 
way  of  shifting  use,  the  wife  shall  be  endowed  although  the  estate  is  de- 
feated by  the  happening  of  the  event.  The  words  of  the  report  are,  "  If 
a  feoffment  be  made  to  the  use  of  J.  S.  and  his  heirs  until  J.  D.  hath 
done  such  a  thing,  and  then  unto  the  use  of  J.  D.  and  his  heirs,  the  thing 
is  done  and  J.  S.  dieth,  his  wife  shall  be  endowed. "(/)  It  is  singular 
that  no  *such  point  is  m.entioned  in  tlic  report  of  Sammes  ^  ^icn  -\ 
and  Payne  in  that  judge's  own  collection,  and  that  the  reason  L  -■ 

immediately  before  assigned  by  Leonard  for  the  decision  in  the  princi- 
pal case  that  the  husband  should  have  curtesy  of  an  expired  estate  tail, 
is  because  the  estate  is  "  speni  and  determined  by  the  dying  without 
issue,  and  doth  not  cease,  or  is  cut  off  by  any  limitation.^\m) 

In  the  note  of  the  same  case  by  Goldsborough,  the  observation  of 
Anderson  is  stated  to  be,  that "  if  an  estate  be  determined  by  limitation, 
this  will  not  avoid  a  tenancy  by  the  curtesy,  but  otherwise  it  is  if  the 
estate  be  determined  by  a  condition,  for  this  shall  relate  to  the  defea- 
zance  of  the  estate. "(;?)  This  mode  of  stating  the  point  leaves^  the  case 
of  a  conditional  limitation  untouched,  and  merely  lakes  the  broad  ground 
of  distinction  between  estates  spent  and  estates  defeated,  for  by  limita- 
tion is  here  obviously  meant  a  simi)le  limitation.  Too  much  stress  has 
perhaps  been  laid  in  practice  upon  the  dictum  of  Anderson,  as  given  by 

{k)  Plow.  1.55,  (cites  9  Ed.  3.)  Hughes  on  Writs,  182,  (cites  2  and  3  Ma.  155.) 
(0   1  Leon.  168.  (w)   1  Leon.  1C8. 

(n)  Goldsb.  81. 

Vol.  XL— 2  H 


78  PARK  ON  DOWER. 

Leonard;  and  as  any  opinion  on  the  case  of  a  conditional  limitation  was 
uncalled  for  in  Sammes  and  Payne,  and  as  the  passage  as  given  by 
Goldsborough  is  more  decidedly  relevant  to  the  question  before  the 
court,  and  embraces  the  precise  point  of  distinction  upon  which  that 
case  stands,  it  would  seem  to  be  at  least  as  much  entitled  to  credit  as  the 
observation  adopted  by  Leonard.  Should  the  reader  in  the  sequel  of 
these  remarks  agree  with  the  author,  that  the  position  in  Leonard  does 
*i7n  1  '^°^  correctly  exhibit  the  law  on  the  point,  he  *will  at  least 
I-  J  think  its  weight  in  some   degree  neutralised  by  its  being  so 

differently  stated  by  another  reporter. 

The  above  mentioned  case  of  Sammes  v.  Payne(o)  is  itself  sometimes 
cited  as  an  authority  that  Curtesy,  and  by  analogy  Dower,  shall  continue 
after  the  determination  of  an  estate  by  the  operation  of  a  conditional 
limitation,  or  executory  devise.  This,  however,  seems  owing  to  inad- 
vertency. In  that  case,  as  reported  by  Leonard  and  Anderson,  one  Jane 
Payne  being  seised  in  fee  of  the  lands  in  question,  conveyed  the  same 
to  the  use  of  herself  for  life,  remainder  to  the  use  of  Elizabeth  Payne 
her  eldest  daughter  in  tail,  upon  condition  that  the  said  Elizabeth  or  the 
heirs  of  her  body,  should  within  one  year  after  the  death  of  the  said 
Jane  Payne,  or  within  one  year  next  after  Joan  the  younger  daughter 
of  the  said  Jane  Payne  should  attain  the  age  of  eighteen  years,  pay  to 
the  said  Joan  or  the  heirs  of  her  body  30/.  And  if  the  said  Elizabeth 
should  die  without  issue  before  the  time  of  payment  aforesaid,  or  if  the 
said  Elizabeth  or  the  heirs  of  her  body  should  fail  in  the  payment  of  the 
sum  aforesaid,  then  to  the  use  of  the  said  Joan  Payne  in  tail.  The 
mother  died,  Elizabeth  took  husband  Thomas  Sammes,  had  issue,  and 
afterwards  died,  without  leaving  issue,  and  before  the  said  Joan  came 
to  the  age  of  eighteen  years.  It  was  argued  that  the  estate  tail  of  Eliza- 
beth was  defeated  by  the  non-payment  of  the  30/.  according  to  the  limi- 
tation of  the  uses,  and  that  therefore  Thomas  Sammes  could  not  be 
4^._,  -,  tenant  by  the  curtesy;  but  the  Court  *held  clearl)'  that  he 
L  -^  should  be,  "  for  (they  said)  as  to  the  condition  of  payment  of 

the  said  sum,  the  same  is  not  determined,  for  she  died  without  issue 
before  the  day  of  payment,  scil.  before  the  second  daughter  came  of  the 
age  of  eighteen  years,  and  as  to  that  there  is  no  condition  broken,  and 
as  to  the  point  of  dying  without  issue,  the  same  is  not  a  condition,  but 
rather  a  limitation  oi  i\\Q  estate,  and  the  same  is  no  more  than  what 
the  law  saith,  and  the  estate  tail  in  Elizabeth  is  spent  and  determined 
by  the  dying  without  issue,  and  doth  not  cease,  or  is  cut  off  by  any 
limitation." 

The  decision  in  this  case,  therefore,  was  merely  that  curtesy  was  not 
defeated  by  the  determination  of  the  estate  by  its  natural  limitation.  So 
little  indeed  was  this  case  considered  by  that  profound  lawyer,  Lord 
Coke,  as  deciding  any  thing  else,  that  he  has  reported  it  simply  as  the 
case  of  a  gift  to  the  elder  daughter  in  tail,  remainder  to  the  younger 
daughter  in  tail.(/?) 

In  the  subsequent  case  of  Flavill  v.  Ventrice(^)  (10  Jac.  1.)  the  law 
was  evidently  considered  as  unsettled  upon  the  point  whether  Dower 
shall  be  defeated  by  a  conditional  limitation,  the  judges  being  equally 

(o)   1  Leon.  167.     1  AnJ.  184.     8  Co.  67.     Goldsb.  81. 

(;>)  8  Co.  67.  (g)  2  Danv.  Abr.  655. 


AS  TO  THE  EFFECT  OF  CONDITIONAL  LIMITATIONS.  79 

divided  upon  tlic  question.  Tliu  note  of  this  case  is  in  the  following 
words.  ''If  A.  seised  in  fee  of  land,  covenants  to  stand  seised  thereof 
to  the  use  of  himself  and  his  heirs,  till  C.  his  middle  son  takes  a  wife, 
and  after  to  the  use  of  C.  and  his  heirs;  and  after  A.  dies,  hy  which  it 
descends  to  li.  the  elder  son  of  A.,  who  has  a  wife,  and  dies,  and  after  C. 
*takcs  a  wife,  it  seems  the  wife  of  H,  the  elder  son  shall  not  ^  ^^^^  i 
he  endowed  of  the  said  estate  of  her   hushand,  because  his  •-  "     ^ 

estate  is  determined  /n/  an  express  limitation,  and  therefore  the  estate 
of  the  wife  heing  derived  out  of  it,  this  cannot  continue  longer  than  the 
original  estate.  P.  10.  .la.  B.,  between  Fhivill  and  Ventrice,  duhitatur 
upon  a  special  verdict;  for,  upon  argument,  the  court  was  divided.  Scil. 
Crawley  and  Vernon,  that  she  shall  not  l)e  endowed,  and  Ilutton  and 
Heath,  e  contra.  Intratur  Tr.  S  Car.  Rot.  134.3."  In  Ileyns  v.  Villars(7') 
(1658,)  this  case  was  cited  at  the  bar,  hy  the  name  of  Rochester  and 
Venters,  and  it  was  added,  that  it  was  a  question  to  that  day,  whether 
tiie  feme  should  have  Dower. 

Thus  the  law  appears  to  have  stood  in  Summer  v.  Partridge,  at  the 
Rolls,  July  25,  1740  (a  case  which  has  been  altogether  overlooked  in 
practice,)  in  which  it  was  decided,  that  a  title  of  curtesy  is  defeated  by 
a  conditional  limitation  by  way  of  devise.  The  short  note  of  this  case 
given  hy  Atkins  is  as  follows.  "A  devise  to  A.  and  her  heirs,  and  if 
she  die  before  her  husband,  he  to  have  20/.  a  year  for  life,  remainder 
to  go  to  her  children.     The  wife  died  before  the  husband. 

"  It  is  a  rule,  said  the  court,  in  the  case  of  a  tenancy  by  the  curtesy, 
as  well  as  in  a  tenancy  in  Dower,  that  the  estate  shall  come  out  of  the 
inheritance,  and  not  out  of  the  freehold.  A  tenancy  by  the  curtesy,  and 
a  tenancy  in  Dower,  arc  excrescences  out  of  the  inheritance,  and  a  con- 
tinuation of  the  inheritance  for  a  certain  time  in  the  husband  [or  wife,] 
which  would  otherwise  have  ceased. 

*"  A  tenancy  by  the  curtesy  must  arise  out  of  the  inherit-  j.  wj^o  1 
ance  which  must  vest  in  the  wife,  and  there  must  be  a  pos-  ^  ^ 

sibility  of  its  descending  upon  the  children;  now,  they  take  hereby 
virtue  of  the  remainder  over,  not  by  descent  from  the  mother,  and 
there  is  no  dillerence  between  making  an  estate  of  inheritance  to  cease 
in  the  wife  the  moment  she  dies,  and  to  arise  in  the  children,  and  a 
jointenancy. 

"  Neither  a  tenant  in  Dower  or  curtesy  can  entitle  themselves  to  an 
estate  in  Dower,  or  curtesy,  where  the  children  [issue]  who  are  left, 
cannot  jiossibly  take  an  inheritance,  for,  the  moment  of  time  the  hus- 
band takes  as  tenant  by  the  curtesy,  the  inheritance  must  descend  upon 
the  children,  and  therefore  it  is  impossible,  in  the  present  case,  to  main- 
tain the  father  is  tenant  by  the  curtesy. ■*'(5) 

The  reasoning  of  the  court,  so  far  as  it  is  reported,  although  evincing 
a  considerable  command  of  the  subject,  fails  to  dispose  of  the  point, 
whatever  influence  the  judgment  itself  may  have.  That  titles  of  Dow- 
er and  curtesy  are  incidents  of  estates  of  inheritance  alone  is  undenia- 
ble; but  no  inference  arises  from  that  as  to  the  present  question,  which 
is  simply  whether  the  particular  mode  by  which  the  estate  of  inheritance 
is  defeated  in  the  case  of  a  conditional  limitation,  shall  also  put  an  end 
to  the  title  of  Dower,  &.c.     The  case  of  jointenancy  is  distinguishable 

(r)  2  Sid.  66.  (s)  2  Atk.  47. 


80  PARK  ON  DOWER. 

on  the  old  technical  principle,  that  the  survivorship  disaffirms  the  seisin 
of  the  deceased  co-tenant,  and  for  purposes  of  title,  negatives,  ab  initio, 
^._.     -,  such  seisin  and   all  its  fruits.     The  latter  part  of  the  *judg- 
L  J  ment  assumes,  that  the  possihility   of  the   issue  to  inherit 

must  continue  to  the  time  when  the  question  arises  by  the  death  of  the 
parent,  a  proposition  for  which  it  is  not  difficult  to  say  the  books  furnish 
no  authority. 

It  remains  to  call  the  attention  of  the  reader  to  the  case  of  Buckworth 
V.  Thirkell(/)  (17S5),  the  leading  case  in  modern  practice  on  the  point 
now  under  consideration. 

In  that  case,  Joseph  Sutton  devised  to  trustees  in  fee,  in  trust  to  re- 
ceive the  rents  and  profits,  and  apply  them  for  the  maintenance  of  Mary 
Barrs,  the  testator's  grand-daughter,  until  she  should  arrive  at  the  age 
of  twenty-one  years  or  be  married;  and  from  and  after  her  attaining 
such  age,  or  being  married,  she  gave  and  devised  the  lands  to  the  said 
Mary  Barrs  her  heirs  and  assigns  for  ever.     But,  in  case  the  said  Mary 
Barrs  should  happen  to  die  before  she  arrived  at  the  age  of  twenty-one 
years,  and  without  leaving  issue  of  her  body  lawfully  begotten,  then, 
from   and  after  the  decease   of  the  said  Mary  Barrs  without  issue  as  ' 
aforesaid,  he  gave  and  devised  his  said  estates  to  his  grandson,  Walter 
Barrs,  and  to  his  assigns  for  his  natural  life,  remainder  over.     Mary 
Barrs  married  Solomon  Hansard,  had  a  child,  and  afterwards  died,  un- 
der the  age  of  twenty-one  years,  and  without  leaving  any  issue.      On 
the  trial  of  an  action  of  replevin,  at  the  Cambridge  assizes,  a  special  case 
was  reserved  for  the  opinion  of  the  court  upon  the  above  facts,  whether 
^  --    -,  Solomon  Hansard  was  entitled  to  be  tenant  by  the  curtesy. 
L       175    J  rpj^g  ^^gg  ^^g  *twice  argued  at  the  bar  by  desire  of  the  court 
and  the  distinction  was  relied  upon  between  estates  spent  or  expired, 
and  estates  defeated  by  way  of  condition.     With  regard  to  the  case  of 
estates  tail,  they  observed,  that  "  before  the  statute  de  Donis,  estates 
tail  w^ere  conditional  fees,  but  on  the  birth  of  a  child,  the  condition  was 
considered  as  performed,  so  as  to  become  an  absolute  estate  to  three 
purposes:  1st,  that  the  donee  in  tail  could  alien;  2dly,  could  forfeit; 
3dly,  it  was  descendible  to  the  issue  of  a  second  marriage,  and  of  course 
gave  curtesy  to  the  husband  of  a  second  marriage.  The  statute  de  Donis 
took    away    the    power  of  alienation,  and  the  curtesy  of   the  second 
husband,  but  left  the  right  of  the  husband  of  the  first  marriage  to  be 
tenant  by  the  curtesy,  as  it  stood  before  the  statute  [viz.  notwithstand- 
ino-  a  subsequent  failure  of  issue],  that  is,  as  being  the  husband  of  a 
woman  whose  estate  on  condition  was  become  absolute  by  birth  of  a 
son.     This,  (they  observed),  accounted  for  husbands  being  tenants  by 
curtesy  of  estates  tail,  but  it  explained  the  difference  between  estates 
tail,  and  estates  defeasible  on  condition,  such  as  the  present,  and  proved 
how  inapplicable  the  case  of  an  estate  tail  was  to  the  present  estate  as 
to  the  right  of  the  husband  to  curtesy. (w)     On  the  other  side  it  was  ar- 
gued, that  this  was  a  limitation  conditional,  and  not  merely  a  condition, 
for  the  defeazance  has  no  relation  to  the  time  of  creating  the  estate,  as 
^  -.in  the  case  of  a  condition  merely,  the  breach  of  which  avoids 

t       ^'^^    J  all  mesne  *incumbrances.(i;)     The  judgment  of  the  court  is 

(n   1  Coll.  Jur.  332  ;  3  Bos.  and  Pul.  652.  n.;  Bull.  Co.  Litt.  241;  a.  note, 
(u)   1  Coll.  Jur.  334.  {v)  3  Bos.  and  P.  653.  n. 


AS  TO  THE  EFFECT  OP  CONDITIONAL  LIMITATIONS.  81 

Stated  to  have  been  in  the  roUuvving  words.— "  Lord  Mansfield.  Ten- 
ancy by  the  curtesy  existed  before  the  statute  de  Bonis,  and  the  defini- 
tion of  it  is,  that  the  wife  must  be  seised  of  an  estate  of  inheritance, 
whicli  by  possibility  her  issue  by  the  husband  may  inherit,  and  there 
must  be  issue  born.'  Estates  at  tbat  lime  were  of  two  sorts,  conditional, 
or  al)suhite,  and  curtesy  applied  to  both  eciuaily.  1  cannot  agree  with 
the  argument,  that  on  performanoe  of  the  condition  by  birth  of  a  child 
the  csllite  became  absolute;  it  was  so  by  a  subtlety  in  odium  of  perpe- 
tuity, and  for  the  special  purpose  of  alienation,  but  for  no  other.  It 
otherwise  reverted  to  the  donor  on  failure  of  the  issue,  according  to  the 
original  restriction.  At  common  law,  the  only  modification  of  estates 
was  by  condition.  The  Statute  of  Uses  introduced  a  greater  latitude  of 
qualification,  but  there  arose  a  great  dread  of  letting  in  perpetuities,  by 
means  of  the  extensive  operation  of  that  statute;  and,  in  the  time  ol 
Elizabeth  and  James,  many  cases  were  decided  with  a  view  to  prevent 
that  effect;  with  this  view,  it  was  allowed  to  bar  contingent  remainders 
before  the  person  who  was  to  take  came  into  esse;  others  were  held  to 
he  too  remote  in  their  creation.  The  cases  proceeded  in  that  view  too 
fiir,  and  estates  were  to  much  loosened,  and  it  became  necessary  to  re- 
strain them  again;  and  in  the  time  of  the  troubles,  eminent  lawyers 
who  were  then  chamber  counsel,  devised  methods,  which  ^  ^^-^  1 
on  their  return  to  Westminster  "Hall,  they  put  in  practice,  •- 
such  as  interposing  trustees  to  preserve  contingent  remainders.  It  is 
not  of  long  date  that  the  rules  now  in  use  have  been  established.  I  re- 
member the  introduction  of  the  rule  which  prescribes  the  time  in  which 
executory  devises  must  take  eficct  to  be  a  life  or  lives  in  being,  and 
twenty-one  years  afterwards. 

"  it  is  contended,  that  this  is  a  conditional  limitation.  It  is  not  so, 
but  a  contingent  limitation;  all  the  cases  cited  go  upon  tbe  distinction 
of  their  being  conditions,  and  not  limitations.  During  the  life  oi  the 
wife,  she  continued  seised  of  a  fee  simple,  to  which  her  issue  mi<^hl  by 
possibility  inherit.  1  am  of  opinion,  that  the  defendant  is  entitled  to 
be  tenant  by  the  curtesy. 

"  The  rest  of  the  court  assenting,  judgment  for  the  defendant."(e^;) 
The  former  portion  of  Lord  INIansfield's  observations  appears  to  be 
little  more  than  a  skirmishing  with  the  arguments  which  had  been  used 
at  the  bar,  and  to  bear  very  slightly,  if  at  all,  ui)on  the  grounds  of  the 
decision.  The  latter  passage,  in  which  he  is  made  to  assign  as  a  reason 
for  his  decision,  that  it  was  not  a  conditional  limitation,  is  not  easily  re- 
concileable  with  the  case  stated.  The  original  limitation  to  iSIary  Barrs 
was  expressly  a  limitation  of  the  fee,  and  the  subsequent  estate  being 
limited  in  derogation  of  that  fee,  and  not  upon  tliedetermina-  j-  ^^_g  -, 
lion  of  a  ])rior  particular  estate,  was  necessarily  *a  condi- 
tional limitation.  If  it  was  not  so,  it  is  dillicull  to  conjecture  what 
Lord  Mansfield  understood  by  a  conditional  limitation.  It  might  jjcr- 
haps  be  thought,  that  his  Lordship's  observations,  as  aliove  staled,  mere- 
ly intended  to  take  the  distinction  between  a  limitation,  and  a  condi- 
tion, properly  so  called.     But  the  language  as  staled  in  the  report  of  the 

{w)  3  13os.  ami  P.  652.  n.  A  case  of  Goodenough  v.  Goodcnough,  in  177  5,  in  mentioned 
in  the  3d  vol.  of  Mr.  Preston's  Treatise  on  Abstracts,  p.  37-.',  as  a  similar  decision  upoa 
dower.     This  case  docs  not  appear  to  be  reported. 

ii    U    2 


S2  PARK  ON  DOWER. 

case  in  Collect.  Jurid.  is  still  more  irreconcileable  with  any  correct 
view  of  the  law,  in  application  to  the  facts  of  the  case  stated.  It  is  as 
follows — "Now,  it  is  contended,  that  this  is  a  conditional  limitation:  it 
is  no  such  thing.  There  is  no  condition  in  it;  it  is  a  contingent  limita- 
tion. If  it  is  a  limitation,  it  does  not  defeat  the  right  of  the  husband  to 
be  tenant  by  the  curtesy,  though  the  estate  is  spent. [x)  It  is  certainly 
inconsistent  with  all  ideas  entertained  in  modern  practice,  to  consider 
an  estate  orignally  limited  in  fee,  and  abridged  by  a  subsequent  limita- 
tion over  upon  the  happening  of  a  particular  event,  in  any  such  light  as 
that  implied  by  the  observation  that  it  was  spent,  upon  the  happening 
of  that  event.  Indeed,  were  not  the  observations  of  Lord  Mansfield 
found  in  a  judgment  upon  a  case  which,  as  reported,  was  indisputably 
that  of  a  conditional  limitation;  they  would  without  doubt  have  been 
considered  as  establishing  the  general  distinction,  as  to  dower  and  cur- 
tesy, between  estates  expiring  by  their  natural  and  regular  limitation, 
and  estates  abridged  or  defeated  by  some  collateral  term  annexed  to 
P  *]'-q  -|  their  creation.  So  far  as  the  language  of  *the  judgment  is 
■-  -■  to  be  relied  on,  it  would  seem  to  proceed  upon  the  very 

distinction  which  Buckworth  and  Thirkell  is  daily  cited  to  overturn. 

The  decision  itself  has  never  been  cordially  acquiesced  in.  We  are 
informed  by  Lord  Alvanley,  that  "  it  occasioned  some  noise  in  the  pro- 
fession at  the  time  it  was  decided ;"(?/)  and  though,  in  delivering  his 
judgment  in  Doe  v.  Hutton,  his  Lordship  studiously  avoided  implicat- 
ing that  decision  with  Buckworth  v.  Thirkell,  which  had  been  urged  at 
the  bar,  it  is  easy  to  perceive,  that  his  forbearance  was  owing  to  that  re- 
luctance which  the  judges  so  laudably  feel  to  disturb  decided  cases, 
where  the  questions  before  them  can  be  disposed  of  on  any  other  prin- 
ciples. The  learned  editor  of  the  latter  portion  of  Co.  Litt.  has  devoted 
a  part  of  one  of  his  valuable  notes  to  animadversions  on  this  case.  "  By 
a  MS.  report  of  this  case  (he  observes),  the  ground  upon  which  the 
court  appears  to  have  formed  their  opinion  on  it  is,  an  analogy  they  sup- 
posed it  to  bear  to  the  cases  of  estates  in  fee  simple  conditional,  and 
estates  tail;  in  both  of  which  Dower  and  curtesy  continue  after  failure 
of  the  issues;  and  in  both  of  which  the  wife's  being  seised  of  a  fee,  to 
which  the  issue  might  by  possibility  inherit,  entitles  the  husband  to 
curtesy.     Some  observations  have  been  offered  above(r)  to  show,  that 


(x)   1  Coll.  Jur.  336.  {ij)  3  Bos.  and  P.  fio3. 

(:)  These  observations  were  to  the  following  effect.  "As  to  estates  in  fee  simple  con- 
ditional at  the  common  law,  and  estates  tail  under  the  statute  de  Donis,  the  wife  was  en- 
titled to  her  dower,  and  the  husband  to  his  curtesy,  out  of  them,  after  the  failure  of  the 
issues  in  tail.  But,  it  may  be  observed  that  though  it  is  now  difficult  to  avoid  considering 
estates  in  fee  simple  conditional,  in  any  other  light  than  as  estates  originally  granted  to  the 
donee,  and  to  the  heirs  general,  or  to  some  particular  heirs  of  his  body;  and  the  estate  of 
the  donor,  as  that  of  a  reversion  expectant  on  the  failure  of  those  heirs ;  yet,  this  restriction 
to  particular  heirs,  and  exclusion  of  others,  is  understood  to  be  produced,  not  by  any  limita- 
tion of  persons  introduced  into  the  grant,  but  by  a  condition  supposed  to  be  annexed  to  it, 
that  if  there  were  no  such  heirs,  or  being  such,  if  they  afterwards  failed,  and  the  donee  did 
not  alien  the  estate,  it  should  be  lawful  for  the  donor  and  his  heirs  to  enter.  This  entry, 
therefore,  was  not  an  entry  upon  the  natural  expiration  of  a  previous  estate,  but  for  a  con- 
dition broken  ;  in  which  case,  as  in  all  others  where  entry  is  made  for  breach  of  a  condition, 
the  right  of  the  wife  to  her  dower,  and  the  husband  to  his  curtesy,  if  the  general  rule  were 
adhered  to,  would  be  defeated.  But,  for  reasons  now  rather  to  be  guessed  than  demonstrated, 
this  case  was  made  an  exception  from  the  general  rule.  So  with  respect  to  the  right  of  the 
wife  of  tenant  in  tail  to  her  dov^er,  and  the  husband  to  his  curtesy,  after  the  failure  of  the 


AS  TO  THE  EFFECT  OF  CONDITIONAL  LIMITATIONS.  83 

the  continuation  of  *Dower  and  curtesy  in  the  cases  of  es-  _  »»cf)  -i 
tatcs  in  fee  .simple  conditional,  was  an  exception  to  a  jjcne-  L  J 

ral  rule  (Dower  and  curtesy,  in  all  other  cases  of  conditions,  being  de- 
feated *l)y  tlie  entry  for  the  condition  broken),  and  that  the  _  «iqi  -t 
same  reasoning  may  be  applied  to  the  continuation  of  Dower  L  J 

and  curtesy,  out  of  an  estate  tail,  after  the  failure  of  issue.  It  may  there- 
fore seem  singular  that  the  court,  on  tiiis  occasion,  should  prefer  rea- 
soning by  way  of  analogy  from  the  only  admitted  exception  to  the 
general  rule,  to  reasoning  by  analogy  from  the  general  rule  itself.  It  is 
the  more  singular,  ;is  the  general  case  of  estates  on  conilition  approached 
nearer  to  the  case  then  under  the  consideration  of  the  court,  than  the 
particular  case  of  estates  ui  fee  simple  conditional,  or  estates  tail,  for  the 
distinguishing  feature  of  tlie  devise  wliich  gave  rise  to  the  case  before 
the  court  (as  of  all  devises  of  that  description),  is,  that  after  the  whole 
fee  is  first  devised,  it  is  made  defeasible  by  a  subsequent  clause.  Now, 
neither  an  estate  in  fee  simj)le  conditional,  nor  an  estate  tail,  has  any 
such  defeasible  quality  or  incident  annexed  to  it,  but  this  fpiality  forms 
the  very  essence  of  all  other  estates  upon  condition.  With  respect  to 
the  application  of  the  maxim  that  where  the  issue  may  by  possibility 
inherit,  the  husband  shall  have  his  curtesy  (and  so  vice  versd  oi  Dowgv); 
in  every  place  in  the  books  where  that  is  mentioned,  it  is  to  introduce 
an  enquiry  whether  the  wife,  being  in  the  actual  seisin  of  an  estate,  was 
in  fact  seised  of  an  estate,  the  (jiiulity  of  which  was  such,  that  the  issue 
of  the  husband  might  inherit  it,  but  never  with  a  view  to  show  that  the 
quantily  of  the  estate  was  such  that  it  might  endure  so  long  as  to  be  in- 
heritable by  the  issue.  On  the  contrary,  when  the  wife's  estate  is 
evicted  by  title  paramount,  or  by  an  entry  *for  the  breach  ^  *io<>  t 
of  a  condition,  in  both  cases  the  issue  might  have  inherited;   ^  "J 

but  the  husband  would  be  entitled  to  his  curtesy  in  neither  after  the 
eviction  or  entry.  Another  dilferencc  between  the  case  of  an  estate  in 
fee  simple  made  defeasible  by  a  suljscquent  executory  limitation  or  de- 
vise, and  that  of  an  estate  in  fee  simple  conditional,  or  an  estate  tail,  is, 
that  an  estate  in  fee  simple,  made  defeasible  by  an  executory  limitation 
or  devise,  cannot,  by  any  means  whatever,  be  discharged  by  the  first 
taker,  or  devisee,  from  the  operation  of  the  subsequent  limitation  or  de- 
vise, but  an  estate  in  fee  simple  conditional  may  immediately  after  the 
birth  of  a  child,  and  an  estate  tail  immediately  after  marriage,  be  de- 
stroyed, and  a  fee  simple  absolutely  acquired,  by  the  husband  and  wife 
joining  in  a  fine  or  common  recovery.  The  case  is  the  same  with 
respect  to  the  wife's  right  of  Dower.  Besitles,  the  quality  we  are 
speaking  of  is  not  sullicient  of  itself  to  entitle  the  husband  to  curtesy  or 

issues  in  tail ;  the  statute  de  Donis  introduced  no  new  estate,  but  only  preserved  estatei 
limited  as  eonditional  fees  to  the  issues  inherital)le  under  them,  by  preventing:  the  tenants  of 
Bucli  conditional  fees  from  alienating  or  disposing  of  them,  and  as  they  preserved  the  estates, 
BO  they  preserved  the  incidents  belonging  to  them,  and  among  others,  the  right  of  the  wife 
to  her  tlower,  and  the  husband  to  his  curtesy."  lUitl.  Co.  I-itt.  241.  d.  note  (4.)  It  may, 
however,  be  doubtful,  whether  the  right  of  the  donor  to  re-enter  upon  an  eventual  failure  of 
issue,  after  the  condition  had  been  once  performed  by  the  birth  of  issue,  did  not  arise  rather 
from  a  determinable  quality  annexed  to  the  estate  (as  a  fee,  as  long  as  the  donee  should 
have  heirs  of  his  body,")  than  from  the  operation  of  an  implied  condition.  And  see  Preston 
on  Estates,  chap,  on  ('ondilional  Tees.  If  so,  the  case  of  dower  of  a  gift  to  a  man  and  the 
heirs  of  his  body,  at  the  common  law,  after  failure  of  the  issue,  would  seem  to  be  an  excep- 
tion to  the  rule  as  to  collateral  limitations,  rather  than  as  to  conditions. 


84  PARK  ON  DOWER. 

the  wife  to  Dower;  it  is  only  one  of  many  incidents  which  the  estate 
ouo;ht  to  have  to  give  that  title."(«)  To  these  observations  may  be 
added,  that  Mr.  Sugden,  in  his  valuable  Treatise  on  Powers,(6)  has  in- 
timated his  opinion  that  the  case  of  Buckworth  v.  Thirkell  was  not 
rightly  decided.  Such  appears  to  have  been  formerly  the  opinion  of 
another  conveyancer  of  great  eminence.  In  the  later  writings,  however, 
of  that  gentlemen,  there  appears  to  be  an  inclination  to  adopt  the  law  of 
that  case,  and  in  one  passage  it  is  remarked,  that  "  the  cases  of  Dower 
of  estates  determined  by  executory  devise  and  springing  use,  owe  their 
r  *ieo  -]  existence  to  the  circumstance  *that  these  limitations  are  not 
*-  -^   governed  by  common  law  principles;  and  when  the  limita- 

tion over  was  allowed  to  be  valid  against  the  former  donee,  it  was  on  the 
terms  that  the  limitation  over  should  not  impeach  the  title  of  Dower  of 
the  wife  of  that  donee."(c)  The  writer  has  not  hitherto  been  so  fortu- 
nate as  to  meet  with  the  passages  in  the  books  from  which  this  proposi- 
tion is  collected.  The  case  of  Flavill  v.  Ventrice,  already  noticed, 
proves  that  at  that  period  two  of  the  judges  entertained  a  different 
opinion,  and  upon  what  the  doubt  of  the  dissentient  part  of  the  court 
turned  does  not  appear.  The  language  of  the  court,  too,  in  the  earlier 
case  of  Sammes  v.  Payne,  assigning  as  a  reason  that  the  husband  sliould 
be  tenant  by  the  curtesy,  that  the  estate  tail  of  the  wife  was  ^^  spent  and 
determined  by  the  dying  without  issue,  and  doth  not  cease,  or  is  cut 
off  by  an}''  limitation,"  if  it  mean  any  thing,  must  imply,  that  in  the 
latter  case,  the  court  thought  it  might  have  been  otherwise.  The  term 
limitation  must  here  necessarily  signify  some  qualification  annexed  to 
the  creation  of  the  estate,  operating  in  derogation  or  abridgment  of  the 
time  comprised  in  that  estate,  and  it  is  peculiarly  the  property  of  a  con- 
ditional limitation  to  cut  ojf\  or  produce  a  cesser  of,  the  estate  upon 
which  it  operates. 

It  has  been  usual  to  represent  the  cases  of  Dower  of  an  expired  estate 
tail,  and  of  a  fee  simple  conditional  at  common  law,  after  failure  of  the 
issues,  as  exceptions  to  the  rule  cessante  statu  primilivo,  cessat  atqiie 
r  *1S4  1  '^^^'^'^o.tivus,  and  to  give  some  colour  to  the  ^decision  in 
L  -'  Buckworth  v.  Thirkell,  it  has  been  frequently  said,  that  that 

case  is  no  more  than  an  additional  instance  of  exception.  This  is  a  pro- 
tection which  the  writer  doubts  whether  it  is  correctly  entitled  to.  The 
language  of  the  resolutions  in  Paine's  case  seems  to  put  the  point  upon 
another  ground,  and  to  show,  that  the  former  instances  are  erroneously 
alleged  as  exceptions  to  the  rule  cessante  statu,  &c.  "At  the  common 
law  (said  the  court),  if  lands  had  been  given  to  a  woman,  and  the  heirs 
of  her  body,  and  she  had  taken  a  husband,  and  had  issue,  and  the  issue 
died,  and  the  wife  also  without  issue,  whereby  the  inheritance  of  the 
land  did  revert  to  the  donor,  in  that  case  the  estate  0^  the  wife  is  deter- 
mined, and  yet  the  husband  shall  be  tenant  by  the  curtesy,  for  that  is 
tacite  implied  in  the  gift."(i/)  So,  "if  tenant  in  tail  takes  a  husband, 
and  hath  issue  and  dies,  now  the  husband  is  tenant  by  the  curtesy;  and 
although  afterwards  the  issue  dies  without  issue,  so  that  the  estate  tail  is 
determined,  yet  his  estate  sliall  continue,  for  it  is  not  derived  merely 
out  of  the  estate  of  the  wife,  but  is  created  by  the  law,  by  privilege  and 

(a)  Bull.  Co.  Liu.  241  a.  n.  (4.)  (6)  P.  .333.  n.  (II.) 

(c)  3  Prest.  on  Abst.  373.  \il)  8  Co.  68. 


AS  TO  THE  EFFECT  OF  POWERS  OF  APPOINTMENT.  85 

benefit  of  law  lacilh  annexed  to  the  gift."(e)  These  passages  seem  to 
prove,  that  though  for  all  other  purposes^  the  estate  tail,  &.c.  is  deter- 
mined, yet  for  the  purposes  of  a  title  to  he  tenant  by  the  curtesy,  or 
tenant  in  Dower,  tlie  estate  still  continues  in  intendment  of  law,  the 
dowress,  &c.  although  not  expressly  included  by  mivic,{in  the  heirs  are, 
in  the  language  of  the  gift,  being  considered  as  tacitly  included  in  that 
gift,  and  her  *estate  as  a  portion  of  tlie  time  comprehended  ^  •lor  t 
in  the  terms  of  the  limitation,  or,  as  Coke  exj)resses  it  in  ^  "^     -■ 

another  place,  "yi/of/rtm?;ioc/f>,  a  continuance  of  part  of  the  estate  tail."(y) 
So  long  then,  as  any  portion  of  the  original  estate  is  subsisting,  the  rule 
cessunte  statu  priniitivo,  ccssat  derivativus,  cannot  apply,  and  the 
cases  of  Dower  and  Curtesy  would  seem  to  be  improperly  propounded 
as  exceptions  to  it.  This  point  also,  it  is  important  to  remark,  is  not,  aa 
has  been  usually  represented,  peculiar  to  estates  tail,  and  estates  in  fee 
conditional,  but,  as  has  been  already  shown,  ecjually  apjdies  to  estates  in 
fee  simple,  determining  by  escheat  for  defiult  of  heirs.  In  all  these  cases, 
then,  the  estate  of  the  dowress  may  continue,  not  upon  any  special  ex- 
emption from  the  api)lication  of  the  rule  cessante  statu,  &.c.;  but,  because, 
although  there  are  no  heirs,  issue,  &c.  the  limitation  has  not  yet  finally 
operated,  nor  can  operate  till  her  death,  to  determine  the  quantum  of 
enjoyment  originally  designated.  So  long  as  there  are  heirs,  the  estate 
continues  iti  toto;  so  long  as  there  is  a  dowress,  the  estate  has  a  partial 
continuation.  On  the  other  hand,  a  conditional  limitation  takes  eiVect, 
without  any  respect  to  the  amount  of  enjoyment  comprehended  in  the 
original  limitation  of  the  estate  to  which  it  is  annexed.  Although  there 
are  heirs  answerable  to  the  given  description,  the  existence  of  those 
heirs  no  longer  ensures  the  continuance  of  the  estate;  and  it  may  be 
made  a  question  why  that  portion  of  the  timo  of  enjoyment  which  is  ta- 
citly implied  by  the  original  ^limitation,  is  in  a  better  situa-  j.  »,cp  -i 
lion  than  that  other  portion  of  it  which  is  expressly  desig-  ^  ^ 

natcd  by  the  terms  of  the  grant. 

These  observations,  whatever  their  value,  will  be  received  by  the 
student  with  caution.  Until  the  law  of  liuckworth  v.  Thirkell  (if  it  be 
a  decision  for  the  point  understood),  shall  be  reconsidered  before  a  com- 
petent jurisdiction,  it  cannot  be  considered  in  jjractice  but  that  a  title  of 
Dower  does  exist  under  the  given  circumstances,  and  the  remarks  of  the 
writer,  although  not  standing  alone,  can  have  no  other  influence  than  as 
they  may  tend  to  show  that  there  is  a  possibility  that  tliat  decision  may 
not  be  followed. 

The  point  here  discussed  is  of  the  more  importance  to  be  correctly 
understood,  since  it  goes  to  the  extent  of  governing,  in  a  great  measure, 
a  question  of  frequent  discussion  in  practice,  which  has  never  yet  been 
decided,  and  u|)on  which  much  diflerence  of  opinion  exists.  This  (pies- 
tion  arises  upon  a  form  of  limitation  occasionally  met  with  in  modern 
deeds,  and  in  most  cases  adopteil  for  the  express  purpose  of  defeating  a 
title  of  Dower;  namely,  a  limitation  to  si'ch  uses  as  A.  shall  appoint, 
and  in  default  of  appointment,  to  the  use  of  himself  in  fee. 

This  mode  of  limitation  was  adopted  under  the  impression,  that  as 
the  appointee  came  in  as  if  named  in  the  deed  creating  the  power,  he 
was  in  paramount  the  risht  of  Dower  in  the  wife,  and  consequently  held 

(e)  8  Co.  71.  (/)  7  Co.  73. 


86  PABK  ON  DOWER. 

the  estate  discharged  of  the  Dower.  The  following  remarks,  in  Mr. 
Sugden's  treatise  on  Powers,  will  open  the  law  on  this  point.  '•'  As  to 
P  #-107  -\  ^powers  with  estates  limited  in  default  of  their  being  exer- 
'■  -'  cised;  immediately  upon  the  execution  of  such  a  power,  the 

estates  limited  in  default  of  appointment  cease,  and  are  defeated,  and  the 
estates  limited  under  the  power  take  effect  from  the  time  of  the  execu- 
tion of  the  power,  in  the  same  manner  as  if  they  had  been  contained  in 
the  deed  creating  the  power.  The  estates  however,  limited  in  default 
of  appointment,  arc,  as  we  have  seen,  vested  estates.  Therefore,  where 
an  estate  is  limited  to  such  uses  as  a  man  shall  appoint,  and  in  default  of 
appointment  to  him  in  fee,  as  he  is  seised  in  fee  until  appointment,  his' 
wife  becomes  dowable;  and  it  has  been  doubted,  whether  a  subsequent 
appointment  will  drive  out  the  wife's  right  of  Dower.(^)  It  is  to  pre- 
vent this  question  from  arising,  that  in  the  limitations  to  bar  Dower  an 
interposed  estate  is  given  in  default  of  appointment  to  a  trustee.  But 
we  must  now  inquire  whether  the  doubt  is  founded.  There  are  few 
points  upon  which  a  greater  difference  of  opinion  has  prevailed  in  the 
profession.  It  was  formerly  much  debated  whether  the  fee  was  vested 
in  the  party,  but  that  question  is  now  at  rest.  Some  opinions  have  taken 
a  distinction  between  a  limitation  in  default  of  and  inifil  appointment, 
and  a  limitation  merely  in  default  of  appointment;  in  which  last  case, 
it  has  been  contended,  the  fee  does  not  vest;  this  doctrine,  however, 
cannot  be  supported  at  the  present  day.  It  must  be  taken  as  a  settled 
principle,  that  the  fee  is  vested  in  the  husband,  and  the  right  of  Dower 
P  *ioo  -I  has  attached.  And  the  opinion  *of  most  of  the  eminent  men 
'-  -^   of  the  times,  and  amongst  them  of  the  late  Mr.  Fearne,  was, 

that  the  right  of  Dower  was  defeated  with  the  estate  on  which  it  attached 
by  the  execution  of  the  power.  The  opinions  of  the  judges  stand  thus. 
In  Cave  v.  Holford,  Mr.  Justice  Heath  expressed  an  opmion,  that  the 
power  would  enable  the  donee  to  bar  the  claim  of  Dower. (A;  In  Cox 
V.  Chamberlain, (e)  Lord  Alvanley  spoke  rather  dubiously  of  the  question. 
He  said,  that  by  the  execution  of  the  power,  the  estate  in  fee  might  be 
superseded,  "  though  perhaps  not  to  bar  Dower."  Lord  Eldon  appears 
to  have  thought  with  Mr.  Justice  Heath  that  the  appointment  drove  out 
all  intermediate  estates,  and  the  dowress  could  not  sustain  her  claim  of 
Dower  upon  the  new  estate  in  the  appointee  of  the  power.(A;)  However, 
it  has  never  been  necessary  to  decide  this  point;(/)  and  in  the  last  case, 
Lord  Eldon  said,  that  notwithstanding  his  own  opinion,  if  the  point  had 
arisen,  he  would  have  permitted  the  party  to  take  the  opinion  of  a  court 
of  law  upon  it. 

"  Upon  principle,  it  is  difficult  to  frame  a  reason  in  favour  of  the  right 
of  Dower;  for,  although  the  estates  limited  by  the  execution  of  the 
power  take  effect  only  from  the  time  of  the  execution  of  the  power,  yet 
r  *18q  1  ^'^®  estates  limited  in  default  of  appointment  *cease  the  in- 
•-  -I  stant  before  the  new  uses  arise.(m)   Perhaps,  the  doubt  may 

iff)  See  n.  (2.);  Co  Litt.  216.  a. 

(A)  "See  3  Yes.  J.  657."  0)  4  Ves.  637. 

{k)   "  See  Maundrell  v.  Maundrell,  10  Ves.  267." 

(/)  "  The  case  of  Wilde  v.  Fort,  4  Taunt.  334,  may  be  treated  as  an  authority  in  favour 
of  the  right  of  dower,  but  ic  is  not  stated  whether  Halliday  executed  his  power,  or  conveyed 
his  estate.     If  the  latter,  of  course  the  point  did  not  arise." 

(m)  "  The  doubt  could  scarcely  be  supported  on  Buckworth  v.  Thirkell,  Coll.  Jurid.  332; 
3  Bos.  and  Pull.  652.  n.  even  if  that  case  itself  had  been  rightly  decided." 


AS  TO  THE  EFFECT  OP  POWERS  OK  APPOINTMENT.  87 

have  been  raised  on  this  ground,  that  as  a  conveyance  of  the  fee  would 
in  fact,  destroy  the  power,  a  |nirlial  cliarge  or  right  altacliing  on  it  even 
by  operation  of  huv  must  have  the  effect  of  defeating  the  operation  of  the 
powev  pro  ianio.  And  this,  it  is  aj)prehended,  is  the  principle:  for  it 
has  never  been  contended,  tliat  where  a  general  power  of  appointment  is 
given  to  A.,  with  a  Hniitation  in  defaiiM,  of  appointment  to  li,  in  ft-e,  the 
right  of  Dower  of  li'.s  wife  wouUl  noi  be  defeated  by  the  execution  of 
the  power. "(/a) 

It  appears  to  the  writer  that  the  decision  in  JJuckwortli  v.  Thirkell 
(if  that  decision  shoukl  be  followed,)  is  more  relevant  to  the  question 
now  under  consideration,  than  seems  to  be  admitted  by  Mr.  Sugden. 
It  is  admitted,  that  estates  created  under  powers  of  appointnicnt  take 
effect,  in  point  of  title,  as  if  inserted  in  the  deed  creating  the  power,  and 
therefore  v/hen,  in  the  case  in  (piestion,  the  power  has  been  exercised,  it 
comes  to  the  same  thing  as  if  the  fee  had  been  originally  limited  to  the 
donee  of  the  power,  with  a  limitation  over  by  way  of  springing  use  to 
the  i)crson  taking  under  the  exercise  of  the  power.  If  the  law  is  once 
admitted  to  be  that  the  title  of  Dower  continues  notwithstanding  the  es- 
tate to  which  it  was  annexed  is  defeated  by  springing  use,  it  is  useless 
to  remark  that  the  execution  of  the  power  "  drives  out  all  intermediate 
estates,  *and  is  prior  and  paramount  to  them;"(o)  for  tiiis  ,  »  on  i 
operation  may  be  fully  admitted,  and  yet  the  title  of  Dower  L  1-'-'  J 
supported;  and  without  reference  to  the  principle  suggested  by  Mr. 
Sugden,  in  the  concluding  passage  of  his  observations.  Lord  Eldon's 
remarks  upon  the  point,  in  Maundrell  v.  Maundrell,  can  hardly  be  con- 
sidered as  conclusive,  until  it  is  understood  whether  his  Lordshij)  intend- 
ed to  express  an  opinion  hostile  to  the  law  of  Buckworth  v.  'I'hirkell,  or 
whether  the  law  of  that  case,  in  its  application  to  estates  defeated  by  the 
execution  of  a  power,  escaped  his  consideration. 

No  case  has  occurred,  to  the  writer's  knowledge,  in  which  this  point 
has  been  again  considered.  At  the  present  time,  however,  the  j)revail- 
ing  and  almost  universal  practice  is  not  only  to  make  the  vendor  execute 
his  power,  i)ut  to  require  him  and  his  wife  to  levy  a  fine  at  the  vendor's 
expense;  and  till  this  case  can  be  distinguished  on  principle  from  the 
case  of  a  fee  defeated  by  executory  devise  or  shifting  use,  or  the  law  of 
Buckworth  v.  Thirkell  shall  be  solemnly  overruled,  the  practice  is  cer- 
tainly right. 


*CH AFTER  I\.  [     -lUl     ] 

Of  the  intans  hy  ivh'ich  a  title  of  dower  wjr///  be  extinguished, 
DISCIIAUGED,  or  SUSPENDED,  by  tlic  uct  of  t lic  ])(irty. 

It  is  an  imi)ortant  quality  in  lilies  of  Dower,  and,  indeed  the  the  cir- 
cumstance which  makes  them  matter  of  so  anxious  consideration  in 
modern  conveyancing,  that  after  they  have  once  attached,  they  cannot 
be  extinguished  or  suspended  by  any  act  of  the  iiusband  alone,  in  the 
nature  of  alienation  or  charge.     The  law,  in  its  anxiety  for  theprcserva- 

(n)  Sugd.  Pow.  331,  et  seq.  (o)    10  Vcs.  26G. 


88  PARK  ON  DOWER. 

tion  of  this  favourite  provision,  put  it  absolutely  out  of  the  power  of  the 
husband  to  deprive  his  wife  of  it  without  her  concurrence  solemnly 
manifested  by  matter  of  record. (a) 

These  circumstances  of  preservative  caution,  warring  against  the 
wants  and  conveniences,  of  mankind,  in  a  country  where  property  is 
incessantly  changing  hands,  and  where  the  ingenuity  of  lawyers  seldom 
fails  to  keep  pace  with  the  requisitions  of  the  times,  have  eventually 
P  *i  QQ  -1  issued  in  the  virtual  abolition,  in  *the  great  majority  of  cases, 
L  '*    -•  of  the  very  provision  which  they  were  intended  to  pro- 

tect.(6) 

It  was  for  a  long  time  doubted  by  great  lawyers,  whether,  before  the 
death  of  the  husband,  there  were  any  means  by  which  the  wife's  inchoate 
title  of  Dower  might  be  voluntarily  extinguished.  It  was  thought  that 
as  she  had  no  right  of  action  until  the  death  of  the  husband,  she  had 
nothing  to  part  with  till  then,  and  could  not  be  bound  even  by  fine.(c) 

But  it  is  now  clearly  established,  that  the  title  of  Dower,  although 
inchoate  till  the  death  of  the  husband,  yet  being  an  interest  attached  on 
the  lands  from  the  instant  of  the  concurrence  of  marriage  and  seisin,  is 
extinguishable  by  those  modes  by  which  a  married  woman  may  relin- 
quish any  other  legal  interest,  and  even  so  long  since  as  the  time  of  Lord 
Coke,  we  are  told  that  "  no  question  was  made  but  that  if  the  husband 
and  wife  levy  a  fine,  the  wife  is  barred  of  her  Dower,  for  the  intermar- 
riage and  seisin  are  the  fundamental  causes  of  Dower,  and  the  death  of 
the  husband  but  as  an  execution  thereof."(f/) 

If  an  action  was  brought  against  a  husband  and  wife  for  the  recovery 
of  lands  wherein  the  wife  had  any  estate,  and  judgment  was  given  against 
them,  the  wife  was  barred ;(e)  and  at  an  early  period  it  seems  to  have 
been  admitted,  that  a  recovery  against  the  husband  and  wife  of  the  hus- 
band's lands,  should  bar  the  wife's  title  of  Dovver.(y)  And  a  fine  being 
an  accommodation  of  a  suit,  and  a  concord  being  deemed  to  have  the 
same  force  and  effect  as  a  judgment  in  a  real  action,  it  follows,  that  a 
^  --  married  *  woman  must  have  been  as  effectually  bound  by  a 

L  -'  fine,  as  by  a  judgment  in  an  adversary  suit.  (^) 

In  Eare  v.  Snow,(A)  a  husband  who  was  tenant  in  tail,  suffered  a  re- 
covery, in  which  he,  and  his  wife,  who  had  nothing  in  the  land,  were 
named  as  joint  tenants,  and  the  wife  appeared  as  joint  tenant,  and 
vouched,  and  she  surviving  her  husband,  it  was  contended  that  she 
should  have  the  recovery  in  value,  by  conclusion,  and  consequently  that 
the  issue  were  not  barred.  But  the  court  held,  that  the  recovery  in 
value  should  not  go  to  the  wife,  for  that  she  lost  nothing,  and  that  the 
recovery  in  value  shall  go  to  him  who  hath  lost  the  tenancy,  and  shall 
be  of  the  like  estate  which  he  lost,  and  that  they  <'  ought  to  adjudge  that 
she  who  had  no  estate  in  the  land  recovered  shall  have  no  estate  in  the 
land  recovered  in  value,  but  that  she  was  named  in  the  praecipe  only  to 

(a)  There  are  two  instances  in  Madox's  Formiilare  Anglicanum  (No.  14S.  319,)  of 
feoffments  which  are  expressed  to  be  made  with  the  assent  of  the  feoffor's  wife.  And  Mr. 
Reeves  (Hist.  Eng.  Law,  vol.  L  p.  91.),  supposes,  that  the  wife's  claim  of  dower  might  in 
those  day^be  barred  by  such  assent,  because  feoffments  were  then  made  publicly  in  court. 
See  BuU.  Co.  Litt.  330.  b.  n.  (1.) 

(i)   See  chap.  V.  (c)  See  10  Co.  49. 

Id)   10  Co.  49.6.  (e)  2  Inst.  342. 

(/)  Plow.  514;  Shep.  T.  46.  {g)  See  Hargr.  Co.  Litt.  121.  a.  n.  (1.) 

(/«)  Plow.  504. 


TITLES  OP  DOWER  HOW  DISCHARGED.  89 

be  barred  of  her  Dower,  to  whicli  purpose  women  arc  commonly  named 
in  common  recoveries  had  against  their  husbands,  and  the  common 
usage  in  this  case  is  to  be  regarded,  for  in  such  cases,  it  has  always  been 
the  intent  of  the  parties  before  this  time,  that  the  wife  siiall  be  barred  of 
her  Dower,  and  the  estate  tail  should  be  barred  also." 

In  this  case,  the  praecipe  was  brought  against  the  husband  and  wife 
jointly;  and  they  did  not,  as  in  moilern  practice,  come  in  as  vouchees. 
The  i)rincij)le  upon  which  a  woman  was  considered  as  barred  of  her 
Dower  by   such  a  recovery,  would  seem  to  be  that  there-  ^    ,  , 

covery  had  disaflirmed  her  husband's  title,  *an(l  she  by  being  '-  ^ 

a  party,  was  estopped  to  lalsify  the  recovery.(/) 

At  this  day,  the  practice  is  almost  invariably  for  the  husband  and 
wife  to  come  in  as  vouchees,  and  it  is  universally  admitted,  that  the 
voucher  of  the  wife  will  extinguish  her  title  of  Dower. 

The  statute  de  modo  levandi  Jines[k)  has  prescribed,  that  where  mar- 
ried women  are  parties  to  lines,  they  sliall  first  be  examined  by  the  jus- 
tices, to  ascertain  their  consent;  and  this  private  examination  is  used  as 
well  where  the  woman  joins  in  a  fme  to  extinguish  her  Dower,  as  where 
it  is  levied  as  a  conveyance  of  her  estate.  And  although  fines  only  are 
mentioned  in  the  statute,  yet  it  was  the  usage  in  Lord  Coke's  time, 
when  a  common  recovery  was  suffered  by  iiusband  and  wife,  to  examine 
the  wife,  and  to  grant  a  dcdinius  polestalem,  to  take  her  acknowledg- 
ment upon  examination,  as  in  case  of  a  fine.(/)  Pigott,  in  his  Treatise 
on  Recoveries,(7;i)  remarks,  that  this  practice  is  wholly  disused  in  com- 
mon recoveries;  but  his  editor,  Serjeant  Wilson,  observes  that  this  is  a 
mistake,  and  that  the  Serjeants  at  the  bar  now  examine  feme  coverts 
when  they  come  to  suffer  recoveries. 

In  modern  practice,  a  fine  is  uniformly  used  for  the  purpose  of  barr- 
ing the  wife's  title  of  Dower,  except  in  cases  where  a  recovery  is  neces- 
sary to  discharge  the  title  from  an  existing  estate  tail.  In  ^  ^^■\^\r,  -\ 
cases  of  vendor  and  purchaser,  the  fme  must  of  'course  be  at  ■-  J 

the  expense  of  the  vendor,  as  necessary  to  discharge  his  title  from  the 
existing  incumbrance.(yi) 

Proclamations  are  not  necessary  upon  a  fine  levied  for  the  purpose  of 
extinguishing  a  title  of  Dower  only,  but  the  modern  practice  is  to  pro- 
claim every  tine. 

By  the  custom  of  particular  places,  a  married  woman  may  Ijc  barreil 
of  her  Dower  by  a  customary  alienation,  without  fine  or  recovery. 

Tjuis,  in  London,  a  deed  of  bargain  ami  sale  by  husl)and  ami  wife, 
acknowledged  before  the  Lord  Mayor,  or  the  Recorder  and  oiu-  Alder- 
man, and  upon  which  the  wife  is  separately  examined,  and  proclaimed 
and  enrolled  in  the  Husting's  Court,  shall  bind  as  a  fine  at  the  common 
law.(o) 

An(l  a  recovery  by  writ  of  right  in  the  Husting's  Court  of  London,  is 
as  effectual  to  bind  the  right  of  a  feme  covert  by  the  custom  of  London, 
as  a  fine  at  common  law.(/^) 

(0  See  Pig.  on  Rccov.  C7.  {k)   IS  E.  1;  2  Inst.  b\b. 

[I)    10  Co.  4:3.  (»i)   r.  OCi  ;  niul  so  nUo  is  5  Mod.  210. 

(?i)  See  an  opinion  of  Mr.  Booth's  on  this  point,  in  1  Williams' Prcc.  72. 
(0)  Hughes'  Writs  (cites  29  H.  8  M.  5  E.  47  p.  1.  SuiU  Enrolled,  10,  li,  15);  Bohuti 
Priv.  Lond.  Emerson,  26. 
(p)  Dy.  290.  a. 

Vol.  IX.— 2  I 


90  PARK  ON  DOWER. 

It  is  said  that  by  the  custom  of  Winchester,  a  deed  enrolled,  is  equiva- 
lent to  a  fine  at  the  common  hw.{q) 

In  treating  a  fine  as  an  absolute  bar  to  a  title  of  Dower,  these  obser- 
^  vations  assume  that  the  fine  levied  by  the  husband  and  wife 

L  J  is  of  such  a  nature  *as  to  import  a  grant  of  the  fee,or  at  least 

of  an  estate  of  freehold.  Where,  however,  the  fine  only  creates  a  par- 
ticular interest  by  way  of  charge,  or  term  for  years,  it  seems  that  the 
operation  of  the  fine  bars  the  title  of  Dower  only  to  the  extent,  and  as 
against  the  owner,  of  the  particular  interest  created;  and  the  old  title  of 
Dower  still  subsists  upon  the  fee,  subject  to  the  charge,  &c.  As  if  the 
husband  and  wife  grant  a  rent-charge,  or  make  a  lease,  by  fine,  the  wife 
will  recover  her  Dower  of  the  land,  and  hold  it  charged  with  the  rent, 
or  the  term,(?') 

And  when  a  fine  is  levied  by  husband  and  wife,  which  imports  a 
grant  of  the  fee,  and  no  declaration  of  the  uses  of  that  fine  is  made,  as 
the  use  results  to  the  conuzor,  the  wife  necessarily  becomes  again  dowa- 
ble  of  that  use,  and  it  may  be  made  a  question  whether  this  new  title  of 
Dower  will  be  defeated  by  a  subsequent  declaration  of  the  use. 

So,  if  no  declaration  of  the  use  is  made  which  puts  the  freehold  out 
of  the  husband,  as  where  the  fine  is  levied  in  confirmation  of  a  demise  for 
years,  the  wife  becomes  dowable  of  the  reversion  which  the  husband 
takes  by  the  resulting  or  declared  use. 

This  sometimes  occurs  in  practice  where  a  fine  sur  conusance  de 
droit  come  ceo,  &c.  has  been  levied,  on  a  mortgage  for  years  made  by 
the  husband,  and  the  use  is  declared  in  confirmation  of  the  mortgage, 
without  going  further;  or  subject  thereto,  to  the  husband  in  fee.  If 
the  intention,  therefore,  is  that  the  fine  should  operate  generally  to  ex- 
,^.„„  -|  tinguish  the  wife's  title  of  Dower,  and  not  merely  to  con- 
L  '     -■  elude  *her  as  against  the  mortgagee,  to  avoid  all  doubt,  it  is 

prudent  that  the  fine  should  be  declared  to  enure,  subject  to  the  mort- 
gage, to  the  usual  uses  to  prevent  Dower.  Where  this  is  omitted,  upon 
a  subsequent  sale  by  the  husband  it  is  sometimes  contended  that  another 
fine  is  necessary  to  extinguish  the  wife's  title  of  Dower  on  the  rever- 
sion, unless  the  purchaser  would  be  satisfied  with  taking  an  assignment 
of  the  mortgage  term.  Where,  however,  the  fine  has  not  been  already 
declared  to  enure  to  the  use  of  the  husband  in  fee,  it  seems  clear  that  a 
declaration  of  the  use  of  the  former  fine  (subject  to  the  term),  to  the 
purchaser  in  fee,  would  defeat  the  title  of  Dower. 

It  does  not  indeed  appear  ever  to  have  been  expressly  determined 
whether  a  declaration  of  uses,  subsequent  to  the  levying  of  a  fine,  shall 
conclude  the  wife  of  her  title  of  Dower  upon  the  fee  which  resulted  to 
the  husband  in  the  mean  time  between  the  levying  of  the  fine,  and  the 
declaration  of  uses.  The  old  doctrine  was  that  the  subsequent  declara- 
tion of  uses  ("  nothing  appearing  to  the  contrary"),  took  effect,  not  as 
creating  the  uses  from  that  time,  but  as  evidence  of  prior  parol  uses,  or 
in  other  words,  of  the  agreement  of  the  parties  that  the  fine,  at  the  time 
it  was  levied,  should  enure  to  those  uses;(6)  and  this  affirmation  being 
by  deed  indented,  was  held  to  conclude  the  heir  of  the  conuzor,  though 

(f/)  Hughes'  Writs,  119  (cites  5  H.  4.  14.  p.  1.) 
(r)  Per  cur.  in  Lampet's  case,  10  Co.  49.  6. 
(s)  Downman's  case,  9  Co.  7.  b. 


TITLES  OF  DOWER  HOW  DISCHARGED.  91 

no  party  to  the  deed,  by  estoppel,  and  it  may  he  supposed  that  it  would 
have  been  held  ef|ua]|y  conclusive  on  the  wife.(/) 

*This  was  without  doubt  tlie  correct  way  ol  stating  the  ^  •los  1 
law  previous  to  the  statute  of  Frauds  and  Perjuries,  but  that  •-  ^ 

statute  has   introduced  a  difliculty   wliich   the  statute  of  4  Ann.   c.  IG, 
has  not  altogether  removed,  in  application  to  the  title  of  Dower. 

The  statute  of  Frauds  and  Perjuries  having  done  away  with  parol 
declarations  of  uses,  it  became  doubtful  how  eflc-ct  could  be  given  to 
subsecpient  declarations  of  uses  of  lines,  &:c.  consistently  with  the  doc- 
trine upon  whicli  they  had  been  originally  established.  The  statute  of 
4  Ann.  c.  16,  "  for  the  amendment  of  the  law,"  adverting  to  the  exist- 
ence of  those  doubts,  enacted, (u)  "  that  all  declarations,  or  creations  of 
uses,  trusts,  or  confidences,  of  any  fines  or  common  recoveries  of  any 
lands,  tenements,  or  hereditaments,  manifested  and  proved,  or  which 
hereafter  shall  be  manifested  and  proved,  by  any  deed  already  made,  or 
hereafter  to  be  made,  by  the  party  who  is  by  law  enabled  to  declare 
such  uses  or  trusts,  after  levying  or  sullering  of  any  such  fines  or  reco- 
veries, are  and  shall  be  as  good  and  eflcclual  in  the  law,  as  if  the  said  last 
mentioned  act  had  not  been  made." 

The  object  of  this  clause  was.  it  is  sufliciently  evident,  to  place  subse- 
quent declarations  of  uses  of  fines  and  recoveries  upon  the  same  footing, 
as  to  validity,  as  if  the  statute  of  Frauds  and  Perjuries  had  not  existed; 
but  it  does  not  necessarily  follow  that  to  eflect  that,  it  virtually  repealed 
the  statute  of  Frauds  and  Perjuries,  as  to  parol  declarations  of  uses,  and 
re-established  the  validity  of  those  uses,  provided  they  were  ^  ^^^^  -. 
evidenced  by  some  subsequent  declaration  by  deed.  'On  •- 
the  contrary,  the  impression  in  modern  practice  undoubtedly  is,  that  the 
use  does,  in  point  of  fact,  actually  result  to  the  conuzor  in  the  mean 
time,  and  that  the  subsequent  declaration  of  uses  does  not  take  effect  as 
evidence  of  a  prior  parol  agreement,  but  as  creating  the  uses  iii  point  of 
e5/a/e,  though  not  in  point  of  title,  from  the  time  of  executing  the  de- 
claration. It  is  consequently  considered,  that  intermediate  charges  and 
conveyances  take  effect  out  of  the  ownersliip  acquired  by  lorce  of  the 
resulting  use;  while  the  old  judges  treated  them  rather  in  the  light  of 
adverse  evidence,  setting  the  matter  at  large,  and  sending  the  persons 
claiming  under  the  subsequent  declaration,  to  furnish  other  evidence  of 
the  agreement  of  the  parties  at  the  time  of  the  fine  levied. (z;)  In  this 
respect,  therefore,  the  law  appears  to  be  materially  altered;  and  if  the 
use  of  the  fee  results  to  the  conuzor,  it  may  perhaps  be  asked  how  the 
title  of  Dower  which  conseciuently  attaches,  can  be  extinguished  without 
another  fine,  admitting  that  the  subsequent  declaration  of  uses  does  not 
suppose  a  previous  parol  agreement  to  the  same  uses.  Bui  whenever 
there  shall  be  occasion  to  discuss  this  doctrine,  although  there  can  be 
little  doubt  that  the  courts  will  decline  construing  the  statute  of  4  Ann. 
as  a  partial  repeal  of  the  statute  of  Frauds  and  Perjuries,  yet,  in  order  to 
support  subsequent  declarations  of  uses  upon   any  recognised  principle, 

{t)  Sec  Co.  Litt.  352.  a.  b.  tliat  tenant  in  clower  shall  Ik-  boiiml  by  estoppel.  So  also 
she  shall  have  tlie  advantage  of  an  ealoppel  between  her  baron  anil  the  tenant.  Roll.  Abr. 
Estoppel  (L.)  pi.  1. 

(u)   Sect.  15. 

(v)  See  the  argument  of  the  court  in  Downman's  case,  ut  supra  ;  and  see  12  .\IoJ.  ICI, 
in  Jones  v.  Morlcy. 


92  PARK  ON  DOWER. 

they  will  find  it  expedient  to  resort  to  the  technical  doctrine  of  relation, 
*200  1  ^"^  decide,  that  though  the  party  claiming  under  the  de- 
L  ^^^  J  claration  was  not  in  in  point  of  estate  by  force  *of  any 
parol  use  arising  by  agreement  at  the  time  of  levying  the  fine,  yet 
in  point  of  title,  he  is  in  by  relation  to  the  time  of  the  fine  levied,  and 
so  as  to  avoid  all  mesne  titles  accruing  by  act  of  law.  In  any  other 
point  of  view,  a  subsequent  declaration  of  uses  Avould  require  a  consi- 
deration either  of  money  or  blood  to  support  it. 

In  leading  the  uses  of  a  fine  which  is  intended  to  have  the  operation 
of  extinguishing  the  Dower  of  the  conuzor's  wife,  it  is  not  necessary, 
though  in  practice  always  usual,  that  the  wife  should  concur.  The 
point  appears  to  have  been  raised  in  Haverington's  case,(w;)  and  the  re- 
solution upon  it  was  in  these  words:  "That  the  wife  who  had  title  of 
Dower  in  the  land  is  concluded  of  her  right  of  Dower  by  the  declara- 
tion of  the  uses  of  the  fine  by  the  husband  only,  which  fine  is  afterwards 
levied  by  them  jointly ;  because  no  contradiction  of  the  woman  appears 
that  she  doth  not  agree  to  the  uses  which  the  husband  solely  by  his  deed 
of  indenture  had  declared."  Perhaps  it  was  not  necessary  to  resort  to 
this  reasoning  to  decide  the  point.  The  case  of  a  woman  joining  m  a 
fine  for  the  mere  purpose  of  extinguishing  her  title  of  Dower,  stands 
quite  upon  a  different  footing  from  that  of  a  woman  joining  with  her 
husband  in  levying  a  fine  of  her  own  lands,  from  which  the  reasoning 
was  borrowed,  (a:)  In  the  latter  instance,  her  agreement,  either  express 
or  implied,  is  of  the  essence  of  the  creation  of  the  uses,  which  take  ef- 
fect out  of  her  ownership;  in  the  former  case,  the  wife  has  nothing  to 
r  ^o(\\  ^  *^°  '^'^^^^  the  creation  of  the  uses — her  instrumentality  *^is 
■-  '^  ^  confined  to  the  simple  act  of  extinguishing  her  incipient 
title  of  Dower;  and  her  consent  to  do  that  is  evidenced,  not  by  her  join- 
ing in  the  declaration  of  the  uses,  but  by  her  being  a  party  to  the  fine 
itself,  after  personal  examination  by  the  judge.  It  was  no  otherwise 
necessary  that  there  should  be  any  declaration  of  uses  at  all,  for  the  pur- 
pose of  completing  the  effect  of  the  fine  to  extinguish  her  title  of  Dow- 
er, than  that  in  the  absence  of  such  declaration,  the  husband  would  take 
the  fee  again  by  resulting  use,  and  consequently  revive  her  title  of 
Dower.  The  agreement  of  the  husband  alone  that  the  fine  should  en- 
ure to  the  use  of  some  other  person,  was  fully  sufficient  to  intercept 
such  resulting  use,  without  any  concurrence,  express  or  implied,  on  the 
part  of  the  wife.  The  author  has  been  the  more  free  in  his  remarks  on 
the  resolution  in  Haverington's  case,  because  the  doctrine,  as  set  down 
by  the  reporter,  appears  to  go  towards  rendering  nugatory  all  the  anx- 
iety bestowed  by  the  common  law  in  superintending  the  circumstances 
of  consent  in  the  case  of  a  woman  under  coverture;  and  to  transfer  the 
operative  force  of  that  consent  from  the  personal  examination  in  court, 
to  the  simple  act  of  executing  the  deed  declaring  the  uses. 

Where  a  contract  for  sale  has  been  entered  into  by  the  owner  of  an 
estate,  of  which  his  wife  is  dowable,  and  a  fine  is  to  be  levied  to  extin- 
guish the  title  of  Dower,  if  the  husband  dies  before  the  fine  is  completed, 
the  purchaser  cannot  car^-y  the  contract  into  effect  as  against  the  Avife, 
even  though  she  may  have  joined  in  acknowledging  the  fine.     This 


(w)  Ow.  6.  (x)  See  Beckwith's  case,  2  Co.  57.  a. 


TITLES  OF  DOWER  HOW  DISCHARGED.  93 

*vyas  determined  at  a  very  early  period.  A  man  seised  \n  ^  ^ 
tail,  bargained  and  sold  to  another  in  fee,  and  covenanted  L  '^^~  J 
that  he  and  his  wife  would  levy  a  fine  for  better  assuranoo;  and  it  was 
agreed  that  30/.  part  of  tiic  consideration  money,  should  he  paid  to  the 
wife  upon  the  conusance  of  tiic  fine  by  the  husband  and  wife;  and  after, 
the  husband  and  wife  acknowledged  a  fine  before  a  judge  on  the  circuit 
in  the  vacation,  and  the  30/.  was  paid  to  the  wife.  The  husband  died 
before  the  term,  and  thereupon  the  wife  stopped  the  passing  of  the  fine, 
and  afterwards  brought  a  writ  of  Dower.  The  purchaser  came  into 
equity  to  be  relieved,  but  it  was  resolved  that  he  should  have  no  remedy 
in  equity  against  the  Dower,  because  it  was  against  a  maxim  in  law  that 
a  feme  covert  should  be  bound  without  a  fine,  and  the  bill  was  dismissed 
accordingly  as  to  the  Dower.(,y) 

Uniil  of  late  years,  however,  it  has  been  almost  uniformly  held,  that 
if  a  husband  contracts  to  sell  an  estate  which   is  subject  to   a   title  of 
Dower  in  his  wife,  or  an  estate  of  which  he  is  seised  in  her  right,  speci- 
fic performance  would  be  decreed  against  him,  although  the  wife  should 
refuse  to  join  in  levying  a  fine.     In  Tothill's  Reports,  there  are  several 
decrees  of  this  nature;(r)  and  in  Hall  v.  IIar(ly(«)   (1735,)  Sir  Joseph 
Jekyll  said,  that  "there  had  been  a  hundred  precedents,  where,  if  the 
husband  for  a  *valuableconsidei"ation  covenants  that  the  wife  ^    *g^„ 
shall  join  with  him  in  a  fine,  the  court  has  decreed  the  bus-   L      ~         J 
band  to  do  it,  for  that  he  has  undertaken  it,  and  must  lie  by  it  if  he  does 
not  perform  it."     That  case  was  a  bill  for  specific  performance  of  an 
award  that  the  party  should  convey  a  piece  of  land  (respecting  which 
there  were  disputes,)  and  procure  his  wife  to  join  in  a  fine.     It  does  not 
appear  that  the  wife  had  any  other  interest  than  her  Dower.     In  many 
other  cases  the  estate  itself  was^,the  wife's,  which  certainly  made  it  strong- 
er,  but   the  same  decree   was  made.(/>) — In    the   case   of  Oulread    v. 
Round, (c)  however.  Lord  Chancellor  Cowper   observed,   that   though 
there  may  be  precedents  in  some  cases  where  a  husband  has  been  de- 
creed to  procure  his  wife  to  levy  a  fine,  yet  it  ought  to  be  sparingly- 
done;  and  the  rather  as  it  puts  the  husband  upon  compelling  the  wife  lo 
do  what  the  law  takes  to  be  done  voluntarily  and  without  restraint.     In 
that  case  the  wife  had  executed  the  release,  and  joined   in  the  covenant 
to  levy  a  fine,  and  part  of  the  consideration  was  paid  by  the  plaintilf  to 
the  husband;  who  had  taken  her  before  a  judge,  and  had  done  all   he 
could  to  procure  her  to  join,  but  could  not;  and  she  said   she  had   exe- 
cuted the  deed  by  comj)ulsion;  and  the  husband  ofliering  to  refund  the 
purchase  money  with  costs,  the  court  decreed  accordingly.     In  the  case 
of  Emery  V.  Wase,(f/)  Lord  Alvanlcy,  and  afterwards  *Lord    _    ^,^04     t 
Eldon  upon  appeal,  availed  themselves  of  some  dissatisfac-   L  J 

tory  circumstances  attending  the  contract,  to  refuse  decreeing  specific 
performance  against  a  husband  of  his  wife's  lands,  although  it  was  not 

(y)  Hody  V.  Lunn,  1  Soli.  Abr.  375;  aiul  sec  1  Ei].  Ab.  CC.  pi.  2.  side  note,  correcting 
the  dictum  in  Baker  v.  Child,  2  Vcrn.  61;  see  also  1  Atk.  617. 

(z)  Haddon's  case,  Tolh.  205;  Grifiin  v.  Taylor,  lb.  106  ;   Barty  v.  HerendcD,  lb.  156  ; 
Sands  v.  Tomlinson,  lb.  157. 

(a)   3  P.  \V.  187. 

(6)   See   Barrington  v.  Horn,  5  Vin.  Abr.  517,  pi.  .'35.  2   Eq.  Ab.  17.     Berry  v.  NVadc 
Finch.  180.     Morris  v.  Stephenson.  7  Ves-  471.     VN'iihers  v.  Pinchard,  Ii>.  I'.S,  cilcd. 

(c)  4  Vin.  Abr.  203,  pi.  4.  (</)  5  Ves.  84G.   8  Ves.  505. 

2   I  2 


94  PARK  ON  DOWER. 

alleged  that  there  was  any  difficulty  in  procuring  the  wife  to  join;  and 
the  latter   expressly   sanctioned   his  decree  by  the  principle   of  Lord 
Cowper,  that  if  a  married  woman  is  to  be  effected  by  the  covenant  of 
her  husband,  the  court  ought  to  act  sparingly  upon  that.   In  a  still  later 
case  in  the  Court  of  Common  Pleas,(e)  where  an  action  was  brought  on 
a  covenant  by  a  husband  that  his  wife  should  levy  a  fine,  which  he  could 
not  prevail  upon  her  to  do,  Lord  Chief  Justice  Mansfield  observed  in- 
cidentally, that  the  covenant  upon  which   the  action  was  brought  was 
such  as  the  Court  of  Chancery  would  not  now  enforce.     And  he  added 
that  nothino-  could  be  more  absurd  than  to  allow  a  married  woman  to  be 
compelled  to  levy  a  fine  through  the  fear  of  her  husband  being  sued,  and 
thrown  into  jail,  when  the  general  principle  of  law  is,  that  a  married 
woman  shall  not  be  compelled  to  levy  a  fine.     This  dictum  certainly 
puts  the  doctrine  much  higher  than  the  printed  cases  would  authorise, 
if  it  referred  to  nothing  beyond  them  for  its  foundation.     But,  as  Mr. 
Sugden  has  remarked,  this  observation  of  Chief  Justice  Mansfield  must 
have  considerable  influence  on  this  subject.(/)     If  however  the  doctrine 
^  -,  was  to  be  extended  to  cases  where  the  wife  is  merely  en- 

[      205    j  ^j^g^j  ^Q   *j-jgj.  Dower,  the  consequences  would  be  terrific. 
As  it  was  strongly  put  in  argument  in  Emery  v.  Wase  by  the  same 
learned  person  when  at  the  bar,  "if  this  doctrine  is  to  prevail,  the  con- 
sequence will  be  that  a  husband  never  can  be  bound  by  his  contract  to 
sell  either  his  own  or  wife's  estate;  for  he  never  can  make  a  title  except 
subject  to  Dower." — "  Solemn  contracts  would  be  evaded  by  collusion 
between  the  husband  and  wife.     In  order  to  get  rid  of  his  contract,  he 
would  prevail  upon  her  not  to  consent."(,^)     So  also  in  Morris  v.  Ste- 
phenson,(A)  Lord  Alvanley,  after  remarking  that  there  the  wife    exe- 
cuted the  deed,  and  even  in  the  very  covenant  it  was  declared  that  it  was 
entered  into  by  the  husband  with  her  consent,  added,  "  In  such  a  case  it 
is  too  much  to  say  there  shall  not  be  a  specific  performance.     It  would 
be  to  say  that  merely  because  he  is  a  husband,  he  is  to  be  exempted 
from  performing  his  covenant;  for  non  constat  that  there  is  any  diffi- 
culty in  obtaining  her  consent.     I  should  therefore  be  obliged  to  go  the 
length  of  saying  that  merely  because  he  is  married,  he  shall  not  be  com- 
pelled to  perform  his  covenants."     It  must  not  be  omitted,  however, 
that  in  Emery  v.  Wase,  Lord  Eldon,  in  answer  to  Sir  James  Mansfield's 
argument,  observed, ''  If  this  was  perfectly  res  integra,  I  should  hesitate 
long,  before  I  should  say  the  husband  is  to  be  understood  to  have  gained 
her  consent,  and  the  presumption  is  to  be  made  that  he  obtained  it  before 
the  bargain,  to  avoid  all  the  fraud  that  may  be  afterwards  practised  to 
^  procure  it.     I  should  have  hesitated  *long  in  following  up 

L  20b  J  ^1^^^  presumption,  rather  than  the  principle  of  the  policy  of 
the  law;  for  if  a  man  chooses  lo  contract  for  the  estate  of  a  married  wo- 
man, or  an  estate  subject  to  Dower,  he  knows  the  property  is  her's  alto- 
gether, or  to  a  given  extent.  The  purchaser  is  bound  to  regard  the 
policy  of  the  law;  and  what  right  has  he  to  complain,  if  she,  who  accord- 
ing to  law  cannot  part  with  her  property  but  by  her  own  free  will, 
expressed  at  the  time  of  that  act  of  record,  takes  advantage  of  the  locus 

(e)  Davis  v.  Jones,  1  Bos.  and  P.  New  Rep.  269,  and  see  Howell  v.  George,  1  Madd.  1. 
(/)  Sugd.  Vend.  181,  5th  ed.  (^g)  8  Ves.  513. 

i^U)  7  Ves.  479. 


TITLES  OP  DOWER  HOW  DISCHARGED.  95 

psenitentiai;  and  why  is  he  not  to  take  his  chance  of  damages  against 
the  husband?"  His  Lordship,  however,  added,  "  If  the  cases  have  de- 
termined this  question  so,  that  no  consideration  of  the  absurdity  that 
must  arise,  and  the  almost  ridiculous  state  in  which  this  court  must  in 
many  instances  be  placed,  can  prevail  against  their  authority,  it  must  be 
so."(/)  It  had  however  been  previously  remarked  by  the  Chancellor 
that "  the  argument  showed  that  the  point  was  not  quite  so  well  settled 
as  it  had  been  understood  to  be."  But  that  Sir  James  Mansfield's  dic- 
tum was  not  borne  out  by  the  existing  impression  of  the  Court  of  Chan- 
cery may  perhaps  be  gathered  from  an  observation  of  Lord  Eldon's  in 
the  subsequent  case  of  Inncs  v.  Jackson, (A*)  where  his  Lordship  re- 
marked that  if  the  mortgagee's  title  would  not  have  been  good  without 
a  fuie,  upon  the  principle  of  a  certain  class  of  cases,  perhaps  the  Court 
would  have  decreed  the  husband  to  procure  his  wife  to  join  in  levying 
a  fine. 

It  has  been  already  propounded  that  a  fine  is  not  *neces- 
sarily  an  absolute  bar  to  a  title  of  Dower,  but  that  a  woman  ^  "  '  \ 
may  still  continue  dowable  notwithstanding  her  having  joined  in  levy- 
ing a  fine,  cither,  first,  where  that  fine  in  its  own  nature  only  created  a 
charge,  or  chattel  interest,  or  2dly,  where,  although  the  fine  itself  im- 
ported a  grant  of  the  fee,  the  use  of  that  fine  either  resulted  to,  or  was 
declared  in  favour  of  the  husband,  subject  only  to  the  charge,  &c.  This 
the  writer  apprehends  to  be  the  correct  mode  of  stating  the  doctrine  of 
courts  of  law;  but  it  seems  to  be  the  understanding  of  the  profession 
that  courts  of  equity  carry  the  point  still  further  in  favour  of  the  dow- 
ress;  and  that  cases  may  occur  where  a  fine,  although  an  absolute  bar  at 
law,  would  in  equity,  upon  the  ground  of  its  having  been  levied  for  a 
particular  purpose  only,  be  restrained  from  operating  to  exclude  the 
widow  form  her  Dower,  except  to  the  extent  of  the  particular  purpose 
originally  contemplated.  It  is  difficult  to  glean  with  precision  the  cir- 
cumstances under  which  this  equitable  relief  would  be  dispensed.  In 
a  case  shortly  stated  from  a  MS,  report  in  2  Eq.  Abr.  3S5,(/)  it  is  said 
"  A  wife  joined  with  the  husband  in  a  fine,  in  order  to  make  a  mortgage, 
which  afterwards  was  not  made;  the  husband  died;  and  the  wife  brought 
a  writ  of  Dower,  and  got  judgment  by  default;  and  the  heir  could  not 
be  relieved  against  it  here,  [in  Equity]  as  he  would  have  been  if  the  fine 
had  been  a  bar  of  her  Dower  in  equity  as  it  was  at  law."  The  court 
must  therefore  in  elfect  have  decided  that  the  fine  was  no  bar  in  equity, 
the  particular  purpose  ^having  failed.  It  seems  however  to  ^  ^^  .. 
have  escaped  observation,  that  as  no  mortgage  was  made,  the  ^  "  -I 
use  resulted  to  the  husband,  and  consequently  the  fine  was  no  more  a 
bar  at  law  than  it  was  in  equity. 

In  Naylor  v.  Baldwin(m)  (15  Car.  I.)  Richard  Baldwin  made  a  mort- 
gage by  demise  to  Tirril  lor  securing  400/.  lent  by  Tirril,  and  to  confirm 
the  mortgage,  Baldwin  and  his  wife  acknowledged  a  fine  to  Tirril.  On 
a  bill  in  equity  for  divers  matters,  the  Court  is  reported  to  have  said, 
"as  for  Mrs.  Baldwin's  Dower,  unless  she  have  barred  herself  tolallv 
by  levying  the  fine,  the  Court  makes  no  order  tiierein  at  present,  but 

(/)  8  Ves.  515.  {k)   IG  Ves.  3R7. 

(/)  And  see  S.  C.  cited  Pr.  Ch.  34,  as  Mrs.  Danby'x  cuse. 
(m)    1  Ch.  Rep.  130. 


96  PARK  ON  DOWER. 

declared  that  if  she  levied  the  fine  only  to  secure  the  lease  [mortgage,] 
no  debt  could  bar  her  except  Tirril's  debt  on  the  lease."  It  is  impossi- 
ble to  glean  any  thing  from  a  case  so  vaguely  reported.  It  does  not 
even  appear  whether  the  fine  was  or  not  an  absolute  bar  at  law,  but  the 
concluding  observation  of  the  court  certainly  seems  to  address  itself 
more  to  the  intention  than  to  the  technical  operation  of  the  fine. 

In  the  case  of  Jackson  v.  Parker(n)  Sir  Thomas  Sewell  laid  hold  of 
the  circumstance  of  the  equity  of  redemption  being  limited  to  the  hus- 
band and  wife  jointly,  to  infer  an  intention  that  the  wife  should  in  equity 
retain  her  right  to  Dower,  subject  to  the  mortgage  debt.      In  that  case 
John  Jackson,  tenant  in  tail  of  the  lands  in  question,  made  a  mortgage 
by  lease  and   release   and  fine,  in   which  his  wife  joined,   to   Frances 
Stubbs,  and  in  which  there  was  contained  a  proviso  that  if  the  said  John 
P    *onQ     1  Jackson  *and  Esther  his  wife,  their  heirs,  executors,  admin- 
L       *         -'  istrators,  or  assigns,  should  pay   the   mortgage   money   and 
interest,  then  Frances  Stubbs,  her  heirs,  or  assigns,  should  reconvey  the 
premises  to  the  said  John  Jackson  and  Esther  his  wife,  their  heirs  or 
assigns;  and  there  was  a  clause  at  the  end  of  the  deed   which   declared 
the  uses  of  the  fine  to  be  (subject  to  payment  of  300/.  and  interest)   to 
John  Jackson,  his  heirs  and  assigns.    Upon  a  question  as  to  what  interest 
the  wife  took  in  the  equity  of  redemption  on  this  mortgage.  Sir  Thomas 
Sewell  was  of  opinion  that  notwithstanding  the  language  of  the  proviso, 
there  was  no  room  to  presume  any  contract  between  the  husband   and 
wife,  by  which  the  latter  was  to  take  a  joint  interest  in  the  equity  of 
redemption  in  lieu  of  her  Dower,  but  that,  if  it  had  been  so,  it  would 
have  been  recited  in  the  deed.      But  he  added,  "  the  wife  had  a  right  to 
redeem,  and  if  she  had  redeemed,  a  court  of  equity  would   not  have 
taken  the  estate  from  her,  but  upon  the  terms  of  allowing  her  Dovver."(o) 
In  a  previous  case  of  Dolin  v.  Coltman(/j)  (1684),  which  w^as  not  ad- 
verted to  in  arguing  Jackson  v.  Parker,  the  doctrine  seems  to  have  been 
carried  to  a  still  greater  length.     There  was  an  express  agreement  that 
the  wife  should  have  the  equity  of  redemption,  but  that  agreement  fail- 
ing upon  a  special  ground,  it  was  held  that  the  wife  should  be  restored 
to  her  Dower.     The  case  is  thus  stated: 

■-  *Q,/^  -1  The  wife  joins  with  her  husband  in  a  mortgage,  *and 
^  "  J  levies  a  fine  to  the  intent  to  barber  Dower,  and  in  considera- 
tion thereof  the  husband  agrees  the  wife  shall  have  the  redemption  of 
the  mortgage;  and  the  husband  afterwards  mortgages  this  estate  twice 
more.  The  court  took  this  agreement  to  be  fraudulent  as  against  the 
subsequent  mortgagees,  so  far  as  to  entitle  the  wife  to  the  whole  equity 
of  redemption:  but  in  regard  the  Avife  in  confidence  of  this  agreement 
had  levied  the  fine,  and  thereby  barred  her  Dower,  and  the  husband  and 
wife  being  living,  the  court  decreed  that  after  the  husband's  decease, 
the  wife  in  case  she  should  happen  to  survive  him  should  enjoy  her 
Dower." 

This  case  appears  to  have  been  decided  upon  a  principle  which  is 
not  much  favoured  at  this  day,  namely  that  of  giving  relief  against  a 
contract  executed,  by  reason  of  failure  of  the  consideration.     It  seems 

(n)  Ambl.  687. 

(o)  See  also  Soulhcoat  v.  Manory,  Cro.  Eliz.  744. 

{p)  1  Vern.  294. 


TITLES  OP  DOWER  HOW  DISCHARGED.  97 

however  to  be  the  result  of  these  cases  of  Dolin  v.  Coltman  and  Jackson 
V.  Parker,  if  they  can  be  relied  upon  as  law,  that  where  a  married  wo- 
man joins  in  a  fine  of  her  husl)an(l's  estate  to  a  mortf»;agce  in  fee,  and  the 
equity  of  redemption  is  in  terms  limited  to  the  wife,  if  this  limitation 
fails  of  cfTect  as  a  settlement  of  the  equity  of  redemption,  either  by  rea- 
son that  the  deed  furnishes  no  evidence  of  a  contract  between  the  hus- 
band and  wife  for  a  transfer  thereof  to  her,((/)  or  by  reason  of  third  per- 
sons subsequently  obtaining  a  leti^al  jjriority  against  her  as  a  volunteer, 
a  court  of  ecfuity  will  take  ailvantagc  of  the  right  of  redemption  limited 
to  her,  to  restore  her  to  her  Dower.  With  regard  to  the  ^  i,^..  -. 
*case  of  Dolin  v.  Coltman,  however,  it  should  be  observed  L  ~  1 
that  it  seems  to  have  been  the  impression  of  the  Court  of  King's  lieneh 
in  Lavender  v.  Biackstone,(r)  and  of  Lord  Eldon  in  Pulvertoft  v.  Pul- 
vertoft,(5)  that  the  wife's  joining  in  barring  her  Dower  will  be  a  sufli- 
cient  consideration  for  a  settlement  on  her.  This,  it  is  observed  by 
Mr.  Sugden,  is  the  better  opinion.  lie  adtis;  "  it  has  been  decided 
that  the  wife  parting  with  her  jointure  is  a  suflicient  consideration.  Now 
if  that  which  comes  in  lieu  of  Dower  is  a  valual)Ie  consideration,  surely 
the  Dower  itself  must  be  equally  valuable.  Besides,  where  a  woman  is 
entitled  to  Dower,  the  estate  cannot  be  sold  to  advantage  without  her 
concurrence;  she  is  a  necessary  party  to  any  arrangement  respecting 
the  estate,  and  that  alone  seems  a  sufficient  ground  to  support  a  settle- 
ment on  her."(^)  In  a  late  treatise  it  is  remarked  that  '*  from  the  case 
of  Dolin  v.  Coltman  it  may,  pcrhajis,  be  thought,  that  parting  with  a 
right  of  Dower,  will  not  be  suHicicnt.  The  case,  however,  is  but  short- 
ly reported,  and  the  reasons  for  the  decision  do  not  clearly  apj)ear.  The 
reason,  most  probably,  was,  that  the  settlement  was  more  than  a  reasona- 
ble equivalent  for  the  interest  the  wife  had  parted  with:(?^)  j-  *2i2  1 
and  if  so,  the  case  of  Dolin  *v.  Coltman  in  no  wise  affects  '- 
the  position  that  parting  with  a  right  of  Dower  will  support  a  settlement 
after  marriage.  There  certainly  appears  to  be  as  much  reason  why  it 
vshould,  as  that  releasing  a  jointure  should  do  so.  Both  are  equally  con- 
tingent interests;  and  yet  we  find  it  has  been  held,  in  several  cases,  t/iai 
releasing;  (I jointure,  will  support  a  settlement  after  marriage. "(v) 

Whether  at  the  present  day  courts  of  equity  would  admit  of  extrinsic 
evidence  that  it  was  the  agreement  or  intention  of  the  parties  that  the 
fine  should  only  conclude  the  wife  as  against  the  incumbrancer,  or  whe- 
ther they  would  render  such  evidence  unnecessary  by  presuming  an 
agreement  to  that  effect  in  every  case  where  a  fine  is  levied  as  part  ol  a 
mortgage  transaction,  is  perhaps  doubtful.  In  Naylor  and  Bahlwin.the 
court  appears  to  have  considereil  it  as  a  matter  of  inquiry,  and  not  of 
presumption;  and  Jackson  and  Parker  was  decided  on  the  language  of 
the  deed,  as  constructively  evidencing  the  intention.  I'joth  these  cases 
therefore  seem  hostile  to  the  doctrine  of  presumption. 

(7)  Upon  this  point  see  Innes  v.  Jackson,  16  Ves.  .150. 

(;•)   2  Lev.  140.  (s)    18  Vcs.  93. 

{t)  yugJ.  Vend.  .562. 

{ii)  Mr.  Sugden  seems  to  take  the  same  view  of  the  cnse,  as  ho  cites  it  ns  nn  nuthority  for 
the  proposition  that  "  if  an  unreasonable  settlement  be  made  upon  a  wile  in  considcrntion  of 
her  releasing  her  dower,  it  seems  that  equity,  in  favour  of  subsciiuent  purchasers,  will  rcslraia 
her  to  her  dower."     Sugden  on  Vendors,  p.  562. 

(i')   Atherley  on  Settlements,  162. 


k 


98  PARK  ON  DOWER. 

On  this  point  the  student  should  consider  the  cases  where  a  fine  by- 
husband  and  wife  of  the  wife's  jointure  lands  has  been  restrained  in 
equity  to  the  particular  purpo9es.(t^;) 

After  the  death  of  the  husband,  the  title  of  Dower  may  of  course  be 
^  extinguished  by  release  to  the  terre-tenant.     And  if  the  hus- 

L  J  band  makes  a  *lease  for  life,  and  dies,  and  the  wife  releases 

her  Dower  to  him  in  the  reversion,  this  is  a  good  release.(a')  But  Dow- 
er will  not  b3  extinguished  by  release  of  "  all  actions  real"  only,  unless 
the  releasee  has  the  freehold,  so  as  to  be  tenant  to  the  praecipe.  (^)  To 
any  other  person  than  the  freeholder,  it  is  of  absolute  necessity  that  the 
widow  should  release  her  right;  and  in  practice,  she  should  do  so  in 
every  case. 

If  the  widow  marries  again,  a  fine  is  of  course  the  only  efficient  mode 
by  which  she  can  release  her  title  of  Dower,  during  the  continuance  of 
her  coverture. 

Before  leaving  this  subject  it  should  be  remarked  that  the  consequence 
of  a  valid  assignment  of  Dower  is  that  the  title  of  Dower,  which,  on 
the  death  of  the  husband,  attached  upon  all  the  lands  of  which  he  was 
seised  during  the  coverture,  is  discharged  as  to  all  the  remaining  lands, 
if  the  assignment  was  made  in  allowance  of  all  the  lands,  or  as  to  the 
remaining  parts  of  the  particular  lands  which  the  assignment,  if  partial 
only,  was  made  in  allowance  of.  The  heir  or  grantee  may  therefore 
make  a  good  title  to  the  remaining  lands,  or  parts  of  lands,  without  the 
concurrence  of  the  dowress;  for  if  she  was  to  bring  a  writ  of  Dower 
againsl  the  owner  of  these  lands,  the  assignment  might  be  pleaded  in 

*oi4  1  ^^^  ^^  ^^^  action.  The  reader  is  requested  to  pursue  this 
'-  ~'  -I  subject,  with  *its  distinctions,  in  the  chapter  treating  on  As- 
signments of  Dower. 

It  remains  to  be  observed  that  some  acts  of  the  widow  may  amount 
to  a  waiver,  and  others  to  a  suspension,  of  her  right  to  an  assignment  of 
Dower. 

Thus  "  if  a  man  seised  of  Blackacre  in  fee,  take  wife,  and  dieth, 
and  the  wife  accept  a  lease  for  life  of  Blackacre,  she  cannot  demand 
Dower  of  the  same  acre,  for  that  she  cannot  demand  it  against  herself,  [z) 

So  where  the  widow  accepts  a  chattel  interest  in  the  lands  of  which 
she  is  dowable,  her  right  to  be  endowed  is  held  to  be  suspended  during 
the  continuance  of  the  chattel  interest.  As  where,  after  the  death  of 
the  husband,  the  widow  accepts  a  lease  for  years  of  the  husband's  land 
from  the  heir,  during  this  lease,  her  Dower  is  suspended. (a)  So  accord- 
ingly where,  before  the  abolition  of  wardships,  the  king  seised  the  ward- 
ship of  the  heir  in  cupite,  and  afterwards  the  king  by  patent  committed 
the  guardianship  of  all  the  lands  of  the  heir  to  the  widow,  during  the 
nonage,  and  no  mention  was  made  of  the  Dower  of  the  widow,  nor  any 


(w)  See  Solly  v.  Whitfield,  Finch,  277.  Anon.  Skin.  238.  Southcoat  v.  Manory,  Cro. 
Eliz.  744. 

(x)  Shep.  T.  328.  8  Co.  301.  (y)  Altham's  case,  8  Co.  301. 

(z)  Perk.  sec.  350,  (cites  M.  2  H.  4.  7.)  So  if  the  demandant  in  a  writ  of  dower  makes 
an  illegal  entry  into  the  land  of  which  she  claims  dower,  or  into  any  part  of  it,  she  thereby 
abates  her  writ.  Kettillesby  v.  Kettillesby.  Dy.  76,  b.  But  it  seems  that  in  scire  facias 
to  have  execution  of  dower  recovered,  such  an  entry  has  been  held  no  plea.     lb. 

(a)  Jenk.  Cent.  2.  ca.  33.  F.  N.  B.  149  (E.)  (cites  2  H.  4.  7.) 


TITLES  OF  DOWER  HOW  DlS>f:HAj».GED.  90 

exception  of  it,  and  afterwards  the   sued  for  her  Oower  in  .-    mo^r 
the  Chancery,  *she  was  held  barred   of  her   Dower  (hirinu;  ^       *15     J 
the  nonage,  lor  her  Dower  and  such  a  j)atent  are  incoiisiHi-'i'.t/(/v) 

But  "  if  a  man  seised  in  fee  of  White-acre,  lease  tlic  saaiu  ycrc  unto  a. 
sole  woman  for  forty  years,  and  tlie  lessor  intermarrieth  with  the  lessee, 
and  the  husband  sufl'er  the  term  to  continue  as  it  was  without  any  uli'ena- 
tion,  or  other  thing  done  therewith,  and  dieth  within  the  term,  it  Is  ^aid 
that  in  this  case  the  wife  may  have  her  Dower  presently,  notwithstand- 
ing that  the  term  does  continue;  because  tliat  at  the  time  of  the  lease 
she  was  not  entitled  to  Dower:  and  notwithstamling  that  the  term  doih 
continue,  it  shall  not  cast  her  of  her  Dower,  because  if  it  [viz.  her  taking 
her  Dower]  shall  be  prejudicial  to  any  person,  it  shall  be  unto  the  pre- 
judice of  the  wife  herself,  "(c) 

It  is  also  said  that  if  the  husband  is  attainted,  and  dies,  and  the  feme 
takes  a  lease  for  years,  of  the  king's  grant,  of  his  lands,  and  afterwards 
by  act  of  parliament,  or  by  reversal  of  judgment  (the  heir  of  the  hus- 
band being  in  the  king's  ward,  for  that  the  tenements  were  intailed) 
now  she  shall  have  her  Dower,  because  it  was  before  her  title  ^  »oi  r 
of  Dower  ^commenced,  or  rather  during  its  suspension,  that  L  "  J 
she  accepted  the  lease. (^/) 

As  the  husband  cannot  prejudice  his  wife  as  to  her  freehold,  a  waiver 
of  Dower  by  a  second  husband  will  not  bind  the  wife  after  his  death. 
So  if  the  heir,  during  the  coverture  with  the  second  husband,  makes  a 
lease  for  years  to  the  wife  of  the  land  of  which  she  is  dowable,  although 
the  husband  enters  under  the  lease,  she  may  after  his  death  waive  the 
lease,  and  claim  her  Dower.(e)  Neither  can  he  prejuiiice  her  by  ac- 
cepting less  than  a  third  part  for  her  Dower,  for  after  his  death  she 
may  waive  the  portion  which  he  accepted,  and  have  her  full  third  part.(y) 


»CHAPTERX.  [    *217    ] 

Of  the  circumstances  under  which  a  title  of  dower  will  be  Ton- 
VEiTED  bt/ reason  q/*  crime,  or  excluded  bi/  reason  0/ personal 
disqualification. 

The  forfeiture  of  a  title  of  Dower  by  reason  of  crime  may  accrue 
either  by  the  crime  of  the  wife  herself,  or,  as  most  commonly,  by  the 
crime  of  the  husliand  of  whose  lands  she  is  dowable. 

By  the  ancient  law,  the  wife  of  a  person  attainted  of  treason  or  felony 


(/y)  .Tcnk.  Cent.  2.  ca.  38.  F.  N.  B.  150.  Hughes'  Writs  (cites  .M.  2  H.  4.  7.)  Bro. 
Dow.  pi.  27,  (cites  1 1  H.  4.) 

(c)  Perk.  sec.  351,  (cites  H.  6  H.  4.  7.)  F.  N.  B.  149  (E.)  n.  But  see  Ow,  154.  Arp. 
in  Goodridgo  v.  Warlmrton,  where  it  is  .said  that  if  feme  boIo  Icsccp  marries  the  IcsRor,  and 
the  lessor  dies  within  the  term,  and  the  wife  enters,  this  siiail  not  conclude  her  dowrr  n/ter 
the  lease  is  expired;  and  cites  11  H.  4.  The  fact  of  entry  by  iho  wife  is,  however,  not 
noticed  in  the  case  as  put  by  Perkins. 

((/)  F.  N.  B.  149.  (E,)  note.  {e)  Jcnk.  Cent.  2.  Ca.  38. 

(/)  4  H.  6.  32.  E.  1.  Fitz.  Dow.  121.  Jenk.  Cent.  2.  Ca.  56. 


100  .,  ;,PARK  ON  DOWER. 

.cpiild  not  be  endoWfiil,'fa)  to  the  intent,  says  Staunforde,(6)   that  if  the 

;  loye  of  a  man's  •<;)wn  life  cannot  restrain  him  from  such  atrocious  acts, 

the  love  of„lijs.\yl'fe  and  children  may;  though  Britton(c)  gives  it  ano- 

'iher  turny' Vi'2;.>t'hat  it  is  presumed  the  wife  was  privy  to  her  husband's 

crime.  '.■. ,  .  ' 

By/Aie 'mitigating  statute  of  1  Ed.  VI.  c.  12,  it  was  enacted  "That 
aib°;it''any  person  or  persons  of  what  estate,  condition,  or  degree  he  or 
they'be,  shall  hereafter  fortune  to  be  attainted,  convicted,  or  outlawed  of 
any  treason,  petit  treason,  misprision  of  treason,  murder,  or  felony  what- 
soever, yet  that  notwithstanding,  every  woman  that  is  or  shall  fortune 
r  *9i«  1  *to  be  wife  of  the  person  so  attainted,  convicted,  or  outlawed, 
L  J  shall  be  endowable  and  enabled  to  demand,  have,  and  enjoy 

her  Dower  in  like  manner  and  form  as  though  her  husband  had  not  been 
attainted,  convicted,  or  outlawed;  any  statute,  law,  usage,  or  custom  to 
the  contrary  in  any  wise  notwithstanding."(c/)  But  by  the  5  and  6  of 
the  same  king,  cap.  11,  the  forfeiture  of  Dower  was  partially  revived,  it 
being  enacted  "That  the  wife  or  wives  whose  husband  or  husbands  here- 
after shall  be  attainted  of  treasons  specified  in  this  act,  or  of  any  other 
treasons  whatsoever  they  be,  shall  in  no  wise  be  received  to  ask,  chal- 
lenge, demand,  or  have  Dower  of  any  the  lands,  tenements,  or  heredita- 
ments of  any  the  person  or  persons  to  be  attainted  of  treason  as  is  afore- 
said, during  the  said  attainder  in  his  force. "(e) 

The  words  of  this  act  being  general,  exclude  the  wife  as  well  in  cases 
of  petit,  as  of  high  treason. (/")  But  in  the  case  of  certain  modern  trea- 
sons relating  to  the  coins,  the  forfeiture  of  Dower  is  expressly  saved. (^) 
And  a  feme  covert,  7ion  compos,  by  killing  her  husband,  would  not  for- 
feit her  Dower,  since  she  is  incapable  of  committing  petit  treason  or  any 
other  crime.(A) 

r  *oi  q  1  Upon  the  ground,  probably,  that  the  forfeiture  of  *Dower 
L  "  J  on  attainder  was  by  reason  of  the  disinherison  of  the  issue,(e) 
it  is  said  in  Litt.  sec.  55,  to  have  been  the  opinion  of  Vavisor,  that  if  a 
man  seised  of  land  committed  felony,  and  after  aliened,  and  after  was 
attainted,  the  wife  should  have  a  g jod  action  of  Dower  against  the  feoflfee, 
although  not  if  it  escheated  to  the  king,  or  to  the  lord.  If  this  point  is 
law,  it  might  be  expected  to  be  applicable  to  treason  at  this  day,  but 
Lord  Coke  denies  this  section  to  be  Littleton's,  and  adds  that  "  it  is 
clear  that  the  wife  at  the  common  law  should  not  have  been  endowed 
against  the  feoffee.  For  to  deter  and  retain  men  from  committing  of 
treason  or  felony,  the  law  hath  inflicted  five  punishments  upon  him  that 
is  attainted  of  treason  or  felony."  He  then  enumerates  these  punish- 
ments, and  among  then  the  loss  of  his  wife's  Dower,  and  adds  "  so  as  the 
woman  shall  lose  her  Dower  as  well  against  the  feoffee  as  against  the 
lord  by  escheat.  And  so  it  was  resolved  in  a  writ  of  Dower  brought 
by  Mary  Gates,  late  wife  of  John  Gates,  who  after  the  coverture  had 
infeoffed  Wiseman  in  fee,  and  after  committed  high  treason,  and  was 

(a)  Perk.  sec.  308,  387,  (cites  13  E.  1.  Dow.  172.  M.  15  E.  3.  Dow.  68.)  Bro.  Forf.  de 
terres,  pi.  78.  F.  N.  B.  150.  Gilb.  Uses,  402. 

(b)  P.  C.  b.  3.0.3.  (c)  C.  110. 
Id)  Sect.  17.                                                        (fl)  Sect.  13, 
(/)  Co.  Litt.  37,  a.  392,  b.  Stanf.  PI.  Cor.  195. 

(g)  St.  5  Ei.  c.  11.  18  El.  c.  1.  8  and  9  \V.  ?.  c.  26.  15  and  16  G.  2.  c.  28. 
(h)  Perk.  sec.  365.  3  Bac.  Abr.  534.  (i)  See  Sav.  54. 


TITLES  OF  DOWER  HOW  FORFEITED.  101 

thereof  attainted,  that  the  wife  should  not  be  endowed  against  the  feoffee, 
and  in  that  case  it  was  resolved  that  so  it  was  at  the  common  law  in  case 
of  felony."(^)  In  the  report  of  this  case  hy  Dyer,  he  notes  the  words 
of  the  statute,  5  and  6  Ed.  VI.  c.  11,"  that  the  wife  of  any  man  attainted 
of  any  manner  of  treason  whatsoever  *//^/// m  *no  wi.se  he  r  *.^  ^  ■, 
received  to  ask,  challenge,  demajid,  or  have  Dower  of  any  '-  J 

of  her  husband^s  lands  during  the  force  of  that  attainder.  And  yet 
note  the  case  above,  that  the  lands  aliened  before  the  treason  committed, 
were  never  subject  to  any  forfeiture  or  escheat,  as  in  the  case  of  Vavisor 
at  the  end  of  the  Chapter  of  Dower  in  Littleton;  and  therefore  A. 
Browne,  serjeant,  was  very  angry  with  the  above  judgment."  This 
judgment  however  is  confirmed  by  the  decision  in  Maynye's  case.(/) 
Maynye,  seised  of  lands  in  fee,  made  a  feoffment  to  a  stranger,  commit- 
ted treason,  and  was  attainted  thereof,  and  had  a  charter  of  pardon  and 
died.  It  was  moved  by  Plowden  in  the  Exchequer,  if  the  wife  of  May- 
nye should  have  Dower  against  the  feofiee;  and  per  Man  wood,  C.  B. 
"By  reason  of  this  attainder  Dower  cannot  accrue  to  the  wife,  for  her 
title  begins  by  the  intermarriage,  and  ought  to  continue  and  be  consum- 
mated by  the  death  of  the  husband,  which  cannot  be  in  this  case,  for  the 
attainder  of  the  husband  hath  interrupted  it,  as  in  the  case  of  elopement, 
and  this  attainder  is  an  universal  estoppel,  and  doth  not  run  in  privity 
only  betwixt  the  wife  and  him  to  whom  the  escheat  belongs,  but  every 
stranger  may  bar  her  of  her  Dower  by  reason  thereof,  for  by  the  attain- 
der of  the  husband  the  wife  is  disabled  to  demand  Dower  as  well  as  to 
demand  his  inheritance;  and  he  cited  the  resolution  of  all  the  justices 
of  England  in  the  case  of  the  Lady  Gates,  4  Ma.  Dyer,  140." 

When,  however,  after  the  attainder  of  treason,  the  husband  procures 
a  charter  of  pardon,  his  wife  will,  *it  seems,  be  dowable  of  ^    „  _ 

all  lands  of  inheritance  of  which  he  becomes  seised  after  the  ^  >       J 

charter  of  pardon,  for,  as  Perkins  observes,  "  notwithstanding  that  she 
was  his  wife  at  the  time  of  the  attainder,  yet  the  issue  which  the  hus- 
band might  have  had  by  her,  after  the  purchase  of  his  charter  of  pardon, 
is  inheritable,  "(w) 

But  notwithstanding  the  charter  of  pardon,  the  wife  shall  not  have 
Dower  of  the  land  which  he  had  before  the  pardon;  and  even,  as  it  seems, 
thougli  such  land  descended  to,  or  was  purchased  by  him  mesne  between 
the  attainder  and  the  pardon. (;^)  In  Maynye's  case,  before  cited.  Chief 
Baron  Manwood  observed,  "  the  pardon  doth  not  help  the  matter,  for 
the  same  extends  but  to  the  life  of  the  offender,  but  doth  not  take  away 
the  attainder,  by  which  sho  is  barred  to  demand  Dower  during  the  said 
attainder  in  force."(o)  This  observation,  however,  if  the  cases  above 
cited  are  to  be  received  as  law,  appears  to  be  too  general  in  its  language. 

But  if  the  heir  reverses  the  attainder  by  writ  of  error,  then  the  wife 
shall  be  endowed;  and  though  before  the  treason  committed  the  baron 
had  levied  a  fine  with  proclamations,  and  five  years  had  passed  before 
the  reversal,  yet  she  shall  have  her  Dower;  for  during  the  attainder  she 

(fc")  Co.  Liu.  41,  a.  Gate  v.  Wiseman,  Dy.  140,  b.    13onloc  ami  Dal.  55,  a.  S.  C. 
{I)   1  Leon.  3. 

(h)^  Perk.  sec.  387,  and  see  Rro.  Escheat,  pi.  27.  S.  P.  as  to  fclouy  before  the  Stat  1  Ed. 
6.  c.  12. 

{n)   Bro.  Escheat,  pi.  27,  as  to  felony  before  the  Statute, 
(o)   1  Leon.  3. 

Vol.  XL— 2  K 


102-  PARK  ON  DOWER. 

could  not  claim,  and  she  had  no  means  of  reversal,  and  the  action  and 
^   *ri2:ht  of  Dower  accrued  to  her  after  reversal  of  the  attain- 
r     *223     1   J    ^,     > 

If  a  woman  is  herself  attainted  of  treason  or  felony,  she  will  thereby 
lose  her  Dower,  hut  if  she  is  pardoned  before  the  death  of  the  husband, 
she  will  be  restored  to  her  Dower.  (9-)  In  an  ancient  reading  by  Phil- 
ins,  it  is  held  that  if  the  wife  be  attainted,  and  then  the  husband  pur- 
chases land  and  aliens  it  again,  and  then  the  wife  is  pardoned,  she  shall 
have  Dower  of  that  land.  And  he  cited  Maunsfield's  case,  adjudged  28 
Elizabeth.  In  that  case  a  jointure  was  conveyed  to  the  wife  before  the 
coverture,  and  during  the  coverture  the  husband  purchased  other  lands 
and  aliened  them  again,  and  died:  the  land  which  the  wife  had  in  joint- 
ure was  evicted,  and  the  wife  had  Dower  of  the  land  which  was  pur- 
chased and  aliened  by  her  husband  at  the  time  when  she  was  barred  of 
her  action  of  Dower.  So  if  wife  elopes,  and  husband  purchases  lands, 
and  aliens  them,  and  then  the  wife  is  reconciled,  she  shall  have  Dower 
of  those  lands,  (r)  These  cases  seem  to  proceed  upon  the  ground  that  the 
bar  is  to  the  action  only,  and  not  to  the  title. 

There  are  some  acts  of  the  wife  which  amount  to  so  violent  a  breach 
^  of  the  marriage  contract,  as,  of  *their  own  force,  to  amount 
L  ^-"^  J  to  a  forfeiture  of  Dower,  by  way  of  penalty. (5)  These  for- 
feitures arise  by  the  statute  law.  By  St.  1.3  Ed.  I.  c.  34,  (commonly 
called  Westm.  2,)  it  is  enacted,  Si  uxor  sponte  reliqtierit  virum  suum, 
et  abierit,  et  moretur  cum  adultero  suo,  amittat  in  perpetuum  ac- 
tionempetendi  dotem  suam,  nisi  vir  suus  sponte,  et  absque  co'trcione 
ecclesiasticd,[t)  earn  reconciliet  et  secum  cohabitare  permittat. 

Lord  Coke,  in  commenting  on  this  statute,  observes  on  the  words  si 
sponte  reliquerit,  et  abierit  et  Tnoretur  cum  adultero,  that  although 
the  words  of  this  branch  be  in  the  conjunctive,  yet  if  the  woman  be 
taken  away  not  sponte,  but  against  her  will,  and  after  consent  and  re- 
main with  the  adulterer  without  being  reconciled,  she  shall  lose  her 
Dower;  for  the  cause  of  the  bar  of  her  Dower  is  not  the  manner  of  the 
goino-  away,  but  the  remaining  with  the  adulterer  in  avowtry,  without 
reconciliation. (?/)  He  also  observes  upon  the  words  moretur  cum 
adultero,  that  although  she  does  not  continually  remain  in  avowtry  with 
the  adulterer,  yet  if  she  be  with  him,  and  commits  adultery,  it  is  a  tar- 
rying within  the  statute:  also  if  she  once  remains  with  the  adulterer,  and 
^  ^  .  -,  after  he  keens  her  against  her  *will:  or  if  the  adulterer  turns 
L  -■   her  away,  yet  she  shall  be  said  7norari  cum  adultero,  withm 

the  act.(y) 

And  if  the  wife  goes  away  with  her  husband's  agreement  and  consent 
with  A.  B.,  and  after  A.  B.  commits  adultery  with  her,  and  she  remains 
with  him,  without  reconciliation,  she  shall  be  barred  of  her  Dovver.(tf;) 

(  p)  See  Mcnvill's  case,  13  Co.  19.  Moor  639.  S.  C.   2  Bulstr.  24.5.  cited. 

Iq)   Co.  Litt.  33,  fl.  13  Co.  23,  in  Menvill's  case.  Perk.  sec.  349. 

(r)   Hargr.  Co.  Litt.  33,  a.  n.  (8.) 

(s)  Co.  Litt.  32,  a.  (cites  Fleta.  1.  n.  c,  22.  Br.  c.  109.  Mirr.  c.  5.  sec.  5.)  2  Inst.  433. 
Perk.  sec.  354.  43  E.  3.  19.  19  E.  4.30.  Sydney  v.  Sydney.  P.  W.  276. 

(()   See  2  Inst.  436.  Perk.  sec.  354. 

(«)  2  Inst.  435.     Co.  LiU.  32,  6.  43  E.  3.  19  i.     Perk.  sec.  3.54.     Bro.  Dow.  pi.  12. 

(v)  2  Inst.  43G  ;  Co.  Litt.  32.  b.;  Perk.  sec.  354. 

(w)  2  Inst.  436.  In  Coot  v.  Berty,  Kep.  t.  Holt.  232  ;  12  Mod.  232,  in  dower,  the  de- 
fendant pleaded  elopement  in  the  wife,  who  replied,  that  her  husband  had  bargained  and 


TITLES  OF  DOWER  HOW  FORFEll  KD.  103 

But,  it  seems  there  must  be  a  going  away  in  some  sense,  for  it  is  said 
that  if  she  remain  in  adultery  upon  the  husband's  hinds  or  tenements, 
she  shall  have  Dower,  l)ecause  the  sanic  is  not  an  eh)i)('inent.(r)  So,  if 
the  lands  were  of  the  joint  purchase  of  the  husbanil  and  wife;  '<  because 
the  husband  is  to  see  that  none  such  live  within  his  land;"(y)  or  though 
the  wife  live  within  the  house  of  a  free  tenant  of  the  manor  which  is  her 
husban{rs.(r) 

And,  "  if  a  man  seised  of  two  manors  in  fee,  takes  a  wife,  and  when 
the  husband  is  dwelling  at  one  manor,  the  wile  goelh  unto  the  other 
manor,  and  when  she  is  there  she  lives  in  adultery,  it  is  said  that  by  so 
doing  she  shall  not  lose  her  Dower,  because  it  cannot  be  intended  a 
running  away  from  ^hcr  husl)an(l,  when  the  law  cannot  in-  ^  •oor  n 
tend  that  she  can  dwell  upon  the  manor  of  her  husband  l  "  J 
without  the  agreement  of  her  husband.      Tanicn  rjit:rre.^\a) 

It  was  held  in  Payncll's  case,  that  after  elopement  there  should  not  be 
any  averment  c/itod  )innfuit  a(/ii/le7'him,  although  the  man  and  woman 
married  after  the  death  of  the  husband,  and  produced  a  sentence  of  purga- 
tion of  adultery  in  the  Ecclesiastical  Court. (/;) 

To  prove  a  voluntary  reconciliation  by  the  husband.  Lord  Coke  says 
that  the  cohabitation  is  not  sullicient,  without  reconciliation  made  by  the 
husband  sponte;  so  as  cohabitation  only,  in  the  same  house  with  her  hus- 
band, availeth  her  not.  But  in  a  case  in  Dyer,  cohabitation  as  man  and 
wife,  appears  to  have  been  held  a  sullicient  proof  of  reconciliation. 

Thus,  where  a  reconciliation  was  jjleaded,  it  was  given  in  evidence, 
that  the  husband  and  wife  had,  after  the  elopement,  lain  together  divers 
nights,  and  in  divers  places,  and  demeaned  themselves  as  man  and  wife. 
It  was  objected,  that  they  never  lived  together  in  one  house,  but  were 
apart;  and  the  wife  continued  in  adultery  with  one  or  more,  during  the 
life-time  of  the  husband:  sed  non  (illocatur,  for  there  might  have  been 
divers  elojiements,  and  divers  reconciliations;  and  the  dclendant  ought 
to  take  issue  on  one  at  his  peril. (c) 

If  the  friends  of  the  husband  esloin  him  from  his  wife,  so  that  the 
wife  does  not  know  what  is  become  of  him,  and  the  friends  of  the  hus- 
band publish  that  *lhe  husband  is  dead,  and  after,  they  pro-  ,  •oofi  1 
•  cure  tl)e  wife  to  release  all  marriages  and  interests  which  she  L  ~  J 
can  have  in  him  as  her  husi)and;  and  after  the  wife,  by  the  persuasion  of 
the  friends  of  the  husband,  marries  with  another,  that  dies,  and  she  takes 
another  husband  to  whom  notice  is  given  that  the  first  is  living,  but  no 
notice  is  given  thereof  to  the  wife,  though  the  wife  lives  in  adultery,  and 
though  the  husband  was  not  out  of  the  realm,  or  beyond  sea,  so  that 
the  wife  ought  to  take  notice  that  he  was  living,  yet,  inasmuch  as  she 
non  reliquit  virum  .sjjoule,  as  the  statute  says,  but  by  the  persuasion 
of  the  friends  of  the  husband  that  he  was  dead,  and  it  does  not  appear 

sold  her  to  the  adulterer,  and  held  bad.  Sec  also  Poyncll's  case,  Rol.  Pari,  vol.1.  110.  No. 
2  ;  2  Inst.  435  ;  Hargr.  Co.  Lilt.  32.  a.  n.  (10.) 

(.j)  V.  N.  B.  150  (cites  43  E.  2.  19.)  Uilb.  Dow.  402  ;  Co.  Litt-  32.  b.;  2  In«L  43fi. 
quxre. 

(»/)   8  E.  2.  Dow.   153,  adjudged. 

(:)  Ibid,  adjudged  ;  2  Iiist.  436  ;  S.  P.  contra  ;  though  Lord  Coke  says  it  ha»  been  held 
otherwise. 

(a)  Perk.  sec.  335.  (/')  '-  Inst.  436. 

(c)  lb.  Uaworlh  v.  Herbert,  Dy.  106.  b. 


104  PARK  ON  DOWER. 

that  she  ever  knew  that  he  was  living,  this  is  not  any  such  elopement  as 
to  bar  her  of  her  Dower,  {d) 

It  is  said  by  Perkins,  "  that  notwithstanding  a  woman  will  not  go 
unto  her  husband  into  another  country,  where  he  dwelleth  not,  when  he 
is  wounded;  and  notwithstanding  that  he  dieth  of  the  same  wound,  she 
will  not  bring  an  appeal  of  his  death,  yet  she  shall  be  endowed,  (e)  But 
quaere,  if  the  husband  lie  sick  in  his  house,  where  he  and  his  wife  are 
both  dwellina:,  and  his  wife  will  not  come  to  him  in  his  sickness,  if  she 
shall  have  Dower."(/ ) 

Another  cause  of  forfeiture  is  stated  by  Lord  Coke.  "  If  a  woman 
say  she  is  conceived  with  child  by  her  husband  whilst  he  lived,  and  in 
P  ^^  g-  ^  truth  is  *not,  whereby  the  next  heir  is  disturbed,  she  shall 
*-  J  lose  her  Dower,  if  she  acknowledge  the  same  before  the 

justices."(^) 

By  an  Irish  statute,  6  Ann,  a  woman  by  subtle  means,  or  secret  in- 
sinuations and  delusions,  threats,  and  menaces,  prevailing  on  the  son  and 
heir  apparent  of  any  person  having  lands  of  the  yearly  value  of  50/.  or 
personal  estate  of  the  value  of  .500/.  to  marry  her,  is  rendered  incapable 
of  demanding  any  Dower  or  thirds,  or  other  interest  out  of  the  real  or 
personal  estate  of  her  husband. (A) 

It  only  remains  to  add  under  this  head,  that  if  detinue  of  charters  by 
the  demandant  is  pleaded  to  a  writ  of  Dower,  and  the  demandant  denies 
the  detinue,  and  takes  issue  thereon,  and  it  is  found  against  her,  accord- 
ing to  the  books  she  shall  lose  her  Dower,  {i) 

Supposing  all  the  circumstances  requisite  to  the  attachment  of  a  title 
of  Dower  to  have  concurred,  and  no  act  to  have  been  done  either  by  the 
r  *99«  1  1^'Jsband  *or  wife  by  which  that  title  is  barred,  extinguished, 
*-  -^  or  forfeited,  there  may  yet  exist  a  personal  disqualification 

on  the  part  of  the  wife,  to  prevent  her  becoming  entitled  to  the  benefit 
provided  for  her  by  the  law. 

At  this  day,  the  only  existing  disqualification  of  this  nature  appears  to 
be  that  of  Alienage. (A;)  The  law,  which  nihil  facit  frustra,vf\\\  give 
no  estate  which  it  does  not  enable  the  donee  to  keep,  and  therefore  an 
alien  can  take  nothing  either  by  Descent,  Curtesy,  or  Dower.(/) 

This  disability  appears  to  have  been  partially  removed  by  an  act  of 
parliament  of  Hen.  V.  (not  inserted  in  our  statute  book)  by  which  aliens 
who  from  thenceforth  should  be  married  to  Englishmen  by  license  of 
the  king,  are  enabled  to  demand  their  Dower  after  the  death  of  their 
husbands  in  the  same  manner  as  Englishwomen,  (w) 

It  seems  also  that  the  Queen  consort  is  dowable,  though  an  alien,  by 
the  law  of  the  crovvn.(n) 

(d)  Green  v.  Harvy,  9  Vin.  Abr.  241. 

(e)  Perk.  sec.  364  (cites  H.  6  H.  3.  102.)     (/)  lb.  sec.  365. 
Ig)   2  Inst.  436,  (cites  T.  9  E.  2.) 

(A)  See  Kent  v.  Whitby,  4  Bro.  P.  C.  362,  where  it  was  held  that  this  being  in  nature 
of  a  penal  statute  must  be  construed  strictly,  and  therefore  when  it  is  pleaded  to  a  writ  of 
dower,  the  jury  must  expressly  find  that  subtle  means,  &c.  were  used,  for  they  are  not  to  be 
presumed  from  the  circumstances  of  the  marriage  being  private,  without  the  father's  consent. 

(i)   Hob.  199,  per  cur.  in  Brickhead  v.  Archbishop  of  York,  and  see  chap.  xiv.  infra. 

{k)  Doctr.  Plac.  148.     Co,  Litt.  31  b.     Jenk.  Cent,  1.  ca.  2. 

(/)   Per  Hale,  C.  B.  1  Vent.  417.     Molloy,  364.  7  Co.  25.  2  Danv.  321. 

{m)  Rot.  Pari.  (Vol.  IV.  p.  128)  8  H.  5.  n.  15.  Hargr.  Co.  Litt.  31,  b.  n.  (9.)  2  Danv. 
652,  pi.  3.  („)   Co.Litt.  31,  A. 


OP  ALIENATIONS  AND  rilARGES  BY  THE  HUSBAND  ALONE.  lO'i 

The  (lisqiinlificalion  of  alienage  may  be  removed  cither  by  denization, 
or  naturali/ation;  but  as  to  the  efroct  of  these  two  modes  there  is  an  im- 
portant distinction,  for  in  the  former  case,  if  the  husband  aliens  the  land 
before  the  wife  is  denizened,  she  will  not  be  entitled  to  Dower,  "  be- 
cause (says  Lord  Coke)  *her  capacity  and  possibility  to  be  .o  o 
endowed  come  by  the  denization. "(o)  L      "         J 

According  to  a  case  in  Jenkins,  an  Englishwoman  residing  in  France 
at  the  time  of  war  between  the  two  nations,  shall  not  have  her  Dower 
in  England  of  her  husband's  lands  until  there  is  peace;  and  the  reason 
given  is,  that  she  is  under  the  power  of  the  king  of  France,  and  if  she 
should  have  her  Dower  while  she  resides  there,  it  would  tend  to  weaken 
the  king  of  F^ngland.(;;)  Tlie  j)oint  will  scarcely  be  considered  law  at 
this  day. 

As  an  alien,  although  he  has  a  capacity  to  purchase  lands,  can  oidy 
hold  them  for  the  benefit  of  the  king,  the  wife  of  an  alien,  although  an 
Englishwoman,  can  derive  no  title  of  Dower;  for  as  he  has  no  interest 
in  the  lands  himself,  no  person  can  have  any  interest  by  him.(y) 

It  was  formerly  held  that  the  profession  of  Judaism  by  the  wife,  was 
a  disqualification  to  her  enjoyment  of  Dower.  The  following  case  is 
put  by  Lord  Coke: 

"  A  Jew  born  in  England  taketh  to  wife  a  Jew  born  also  in  England, 
the  husband  is  converted  to  the  Christian  faith,  purchaseth  lands,  and 
enfeoficth  ''another,  and  dieth;  the  wife  brouglU  a  writ  of  _  *no/i  t 
Dower,  and  was  barred  of  her  Dower;  and  the  reason  yielded  •-  J 

in  the  record  is  this.  Quia  vera  cuntra  justiliam  est,qiiud  ipsa  (lutein 
petat  vel  habeat  de  teneniento  quodfuit  viri  sui,  ex  quo  in  conver- 
sione  sua  noluit  cum  eo  adhrrere  el  cum  eo  convert i.'\i') 

This  law  may,  without  much  hazard,  be  stated  as  obsolete. (a-) 


^CHAPTER  XI.  [  "SSI  ] 

Of  ALIENATIONS  Ulld  CHARGES  hj/  the  HUSBAND    ALONE,  pVCvioUS    and 

subsequent  to  the  attacliinent  of  a  title  of  dower. 

Any  effectual  alienation  by  the  husband,  previous  to  the  attachment 
of  a  title  of  Dower,  confers  an  estate  on  the  alienee  which  will  be  gooil 
against  the  wife,  although  she  afterwards  survives  her  husband.  Tlie 
estate  being  taken  out  of  the  husband,  is  placed  beyond  the  reach  of  the 
attachment  of  the  title  of  Dower;  for  a  woman  is  not  dowable  of  such 
estates  as  her  husband  was  seised  ot  at  any  time,  but  of  such  estates 
only  as  he  was  seised  of  at  any  time  during  the  an'erture.(a) 


(o)   Co.  Litt.  33,  a.  13  Co.  23.  Jenk.  Cent.  1.  ra.  2. 

C/j)  Jenk.  Cent.  1.  ca.  2.  (cites  4  H.  3.  Dow.  Filz.  179.     8iamf.  Prar.  ch.  12.) 

(q)   Co.  Lilt.  31,  a.  (cites  Bract,  f.   2'J8.      I'J  E.  2.     Uow.  171.      Dame  Hole's  case,  1.1 
E.  3.  Uow.  ytatham.  13  E.  1.  Dow.) 

(r)   Co.  Litt.  31,  b.  (cites  Dors,  ciaus.  18  H.  3.  .M.  IV.)   Jeiik.  Cent.  1.  ca.  2.  (cites  3  H. 
6.  65.) 

(s)  See  the  very  learned   disquisition  on  tlie  laws  of  England   with  regard  to  Jews  in 
Plowden  on  Usury,  Part  I.  Chap.  iii. 

(o)  See  p.  24,  supra. 

2    K   2 


106  PARK  ON  DOWER. 

The  rule  is  generally  propounded  that  the  title  of  Dower  will  be  pre- 
vented by  any  alienation  by  the  husband  before  marriage',  but  under 
some  circumstances  this  may  happen  as  well  by  an  alienation  after 
marriage  as  before,  and  therefore  the  correct  mode  of  stating  the  rule 
is,  that  the  alienation  shall  be  previous  to  the  attachment  of  the  title  of 
Dower.  For  if  the  husband  has  an  estate  in  lands  which,  by  reason  of 
any  precedent  or  interposed  estate  of  freehold  existing  in  another  person, 
r  *2'?2  1  3t  the  time  of  the  alienation,  is  not  subject  to  an  incipient 
L  ^  title  of  *Dower,  an  alienation  of  that  estate,  whether  before 

or  after  marriage,  will  prevent  the  wife  from  ever  becoming  entitled, 
although  the  particular  estate  afterwards  determines,  or  is  consolidated, 
in  the  life-time  of  the  husband.  In  this  case,  although  the  husband  is 
seised  during  the  coverture,  the  estate  is  not  of  such  a  quality,  during  his 
seisin,  as  a  title  of  Dower  will  attach  upon;  and  it  was  not  till  after  his 
alienation  that  it  attained  that  quality. 

If  however  the  estate  of  the  husband  is  of  such  a  quality  as  that  Dow- 
er incipient  will  attach  upon  it,  the  alienation  must  necessarily  be  before 
the  marriage  is  solemnized  to  transfer  a  title  discharged  of  Dower, 

For  this  purpose  it  is  sometimes  necessary  to  distinguish  between 
alienations  which  are  voidable  only,  and  those  which  are  ipso  facto  void; 
for  although  the  alienation  were  voidable,  yet  if  it  never  was  avoided 
during  the  coverture,  there  will  of  course  be  no  title  of  Dower.  But  if 
the  alienation  were  simply  void,  the  seisin  never  having  been  transferred 
to  the  alienee,  remained  in  the  husband,  and  became  subject  to  the 
attachment  of  Dower. 

This  question  has  sometimes  arisen  upon  the  effects  of  different  modes 
of  alienation  by  tenants  in  tail;  since,  in  some  cases,  an  alienation  by  a 
tenant  in  tail  is  merely  void,  and  in  other  cases  is  voidable  only;  and 
consequently  the  question  that  the  wife  is  or  is  not  dowable  of  the  estate 
tail,  will  depend  upon  the  mode  of  alienation  which  was  adopted.  It  is 
now  clearly  settled,  that  if  a  tenant  in  tail  conveys  to  a  man  and  his 
heirs  by  bargain  and  sale,  lease  and  release,  or  covenant  to  stand  seised 
r  *oQq  -]  to  *uses,  a  base  fee  passes,  commensurate  with  the  time  of 
*-  ~  -'  the  estate  tail,  though  defeasible  by  the  issue  in  tail  when 
their  right  to  the  possession  accrues.  (6)  If  therefore  a  tenant  in  tail 
conveys  in  either  of  those  modes  before  marriage,  as  the  estate  of  the 
bargainee,  releasee,  or  covenantee  is  good  as  against  the  tenant  in  tail 
himself,  there  will  be  no  seisin  in  him  during  the  coverture.  It  is  ad- 
mitted likewise  that  where  the  conveyance  operates  by  transmutation  of 
possession,  the  tenant  in  tail  may  limit  the  use  by  way  of  remainder, 
even  though  that  remainder  cannot  take  effect  till  after  his  death;  as 
where  it  is  previously  limited  to  himself  for  life,  remainder  to  another.(c) 
It  is  admitted  also  that  although  the  conveyance  does  not  operate  by 
transmutation  of  possession,  the  use  may  be  limited  by  way  of  remain- 
der, if  it  may  by  possibility  take  effect  in  the  life  of  the  tenant  in  tail, 
as  a  bargain  and  sale  or  covenant  to  stand  seised  to  the  use  of  the  cove- 
nantee for  life,  remainder  to  J.  S.  in  fee.(c?)    But  it  is  clearly  decided(e) 


(6)  Marhel  V.  Clarke,  2  Raym.  778.     Salk.  619.    11  Mod.  19.    Holt.  615.  Goodright  v. 
Ti^ead.  3  Burr.   17U3. 

(c)  2  Raym.  782.  Goodright  v.  Mead,  ubi  sup. 

{d)  2  Raym.  782.  (e)  Machel  v.  Clarke,  ubi  sup. 


OF  ALIENATIONS  AND  CHARGES  BIT  THE   HUSBAND  ALONE.  107 

that  if  on  a  conveyance  by  tenant  in  tail  without  transmutation  of  pos- 
session, the  use  is  so  limited  that  the  remainder  cannot  take  effect  till 
after  his  death,  (as  to  himself  for  life,  remainder  to  another)  the  remain- 
der is  void,  and  as  a  covenant  hy  tenant  in  tail  to  stand  seised  to  the  use 
of  himself  *lbr  life  is  only  good  for  the  sake  of  remainders, 
if  the  remainders  arc  void,  the  whole  is  void,  and  lie  contin-  ^  ^^^  I 
ues  seised  of  his  old  estate  tail.  In  this  cas<!,  therefore,  the  wife  will  be 
dowable,  althouirh  married  after  the  covenant  to  stand  seised,  and  there 
are  several  cases  in  the  old  books  where  it  has  been  so  determined. (/) 

This  point  can  rarely  occur  in  practice,  now  the  mode  of  making  tml- 
tlemeiits  by  lease  and  release  to  uses  has  become  so  universal. 

Instances  may  occur  in  which  an  alienation  by  the  husband  mav  not 
take  effect  till  after  the  title  of  J)ower  accrued,  and  yet,  by  force  of  the 
doctrine  of  relation,  may  avoid  that  title  of  J)ower,  by  making  it  in 
effect  an  alienation  before  marriage,  or  before  the  title  accrued.  A  case 
put  by  Shepherd,  in  his  Touchstone,(^'-)  affords  an  example  of  this,  "If 
A.  bargain  and  sell  his  land  to  B.  in  fee,  and  then  marry  C.  and  die,  and 
C.  is  endowed,  and  after  the  deed  is  enrolled;  in  this  case  the  Dower  of 
the  *woman  shall  be  taken  away  by  relation,  as  was  held  in 
Baron  Frevil's  case,  22  Eliz.  C.  B."  [    *235    J 

The  same  principle  would  apply  to  the  doctrine  of  exchanges  at  com- 
mon law.  In  these  cases,  until  the  exchange  is  executed  by  entry,  the 
seisin  remains  in  the  original  owners,  but  it  may  be  assumed  that  if  the 
exchange  was  made  before  marriage,  the  execution  of  the  exchange  after 
marriage  would  have  relation  to  the  time  of  the  exchange  niade,  so 
as  to  carry  the  lands  given  in  exchange  free  from  the  title  of  Dower  in 
the  wife. 

Another  instance  sometimes  occurs  in  practice  to  which  the  same 
principle  may  be  applied.  A  person  having  a  remainder  in  fee,  subject 
to  a  previous  estate  of  freehold  in  another  person,  or  having  the  imme- 
diate freehold,  and  also  the  inheritance  in  remainder  upon  an  interposed 
estate  of  freehold,  marries,  and  becomes  bankrupt,  and  between  I  he  act 
of  bankruptcy  and  the  bargain  and  sale  to  the  assignees,  the  particular 
estate  of  freehold  determines;  so  that  the  title  of  Dower  attaches.  The 
bargain  and  sale,  when  made,  having,  by  force  of  the  bankrupt  laws, 
relation  to  the  act  of  bankruptc}',  so  as  to  defeat  and  over-reach  all  mesne 
titles  of  this  nature, (A)  the  assignees  can  make  a  title  to  a  purchaser  dis- 
charged from  the  Dower  of  the  bankrupt's  wife,(i)  and  the  better  opinion 
is  that  the  purchaser  cannot  require  a  line. 

(/)  Higham  V.  Bcdingfield,  Noy  40.  Blillieman  v.  blithcman,  Cro.  Eliz.  -'79.  1  And. 
291.  In  the  latter  case  it  was  a  mere  executory  covciiuiit  that  niter  tlie  death  of  the  cove- 
nantor the  lands  should  descend,  remain,  and  be  to  his  son  and  his  heirs,  liut  the  court  iiaid 
that  if  it  had  been  a  covenant  to  stand  seised  to  the  use  of  himself  for  life  and  after  to  his 
son,  this  had  been  void  to  alter  the  use  to  the  son.  The  principle  however  ui>on  which  ihcy 
grounded  this,  "that  he  being  tenant  in  tail,  and  reserving  to  himself  ati  estate  for  iiisi  own 
life  had  reserved  all  that  he  might  lawfully  dispose  of,"  cannot  now  be  accinled  lo  a*  ibe 
true  ground.     See  also  Yelv.  51.  Moor,  683. 

iff)  P.  2'2f).  and  see  Gilb.  Uses,  97.  Cro.  Car.  569. 

(A)   See  Kiggil  v.  Player,  I  Salk.  111. 

(t)  The  point  has  been  determined,  in  ctrect,  by  the  cases  of  Parker  v.  Hlicke,  Cro.  Car. 
568,  569,  and  Benson  v.  Scott,  Carth.  275.  1  Sulk.  1H5.  3  Lev.  385.  4  .Mo<l.  251.  I'J  Mod. 
49;  though  those  were  cases  of  Preebench.  where  the  custom  was  that  the  husband  mufi  die 
seised  to  entitle  the  widow  ;  but  the  circumstances  of  those  cases  bring  Uicin  up  to  ihc  ra»e 
of  dower  mentioned  above. 


108  PARK  ON  DOWER. 

*An  alienation  or  settlement  by  the  husband,  although 
J  immediately  before  the  marriage,  and  with  the  express  in- 
tention of  excluding  the  wife  of  her  Dower,  could  not,  it  is  under-- 
stood, (/t)  be  impeached  as  a  fraud  upon  the  marital  rights  of  the  wife  as 
in  the  case  of  a  woman  making  a  settlement  of  her  estates,  unknown  to 
her  intended  husband,  on  the  eve  of  marriage. 

It  is  obvious  that  as  the  husband  may  by  aliening  the  lands  at  any 
time  before  marriage,  or  before  the  title  of  Dower  has  attached,  altogeth- 
er intercept  that  title,  and  prevent  its  ever  arising,  he  may,  under  the 
same  circumstances,  create  derivative  interests  or  charges  which  shall  be 
good  against  the  wife  when  her  title  to  be  endowed  is  complete  by  the 
death  of  her  husband. 

Thus  his  leases, (/)  his  statutes,  or  recognizances,(w)  &c.  are  all  bind- 
ing on  the  wife,  and  she  shall  hold  the  lands  assigned  to  her  in  Dower 
subject  to  them;  and  although  the  husband  was  tenant  in  tail,  and 
made  a  lease  unauthorized  by  the  statute,  yet  that  lease  will  be  binding 
upon  the  wife.  (?«) 

It  may. however   be  observed,  as  incidental  to  this  point,  that  if  the 

iino'T  n  husband,  previous  to  marriage,  *acknowledges  a  statute  or 
I-  ^   recognizance,  and  afterwards  dies,  his  heir  within  age,  and 

part  of  the  land  is  assigned  to  the  wife  for  her  Dower,  the  Dower  of  the 
wife  shall  not  be  extended  during  the  nonage  of  the  heir;  for  all  the 
lands  are  Viable  pro  rata;  and  as  the  lands  of  the  heir  within  age  cannot 
be  charged,  so  neither  shall  the  lands  of  the  dowress;  for  otherwise  the 
whole  burden  should  fall  upon  her.  But  if  all  the  lands  had  been  as- 
signed to  her  for  her  Dower,  they  should  be  extended  during  the  minor- 
ity of  the  heir.(o)  And  it  seems,  even  in  the  former  case,  that  the  non- 
age may  be  relieved  against  in  equity.(7;) 

After  a  title  of  Dower  has  once  attached,  it  is  not  in  the  power  of  the 
husband  alone  to  defeat  it  by  any  act  in  the  nature  of  alienation  or 
charge.(5')  It  is  a  right  attaching  by  implication  of  law,  which,  although 
it  may  possibly  never  be  called  into  effect  (as  if  the  wife  die  in  the  life- 
time of  the  husband,)  yet,  from  the  moment  that  the  facts  of  -marriage 
and  seisin  have  concurred,  is  so  fixed  on  the  land  as  to  become  a  title 
paramount  to  that  of  any  person  claiming  under  the  husband  by  sub- 
sequent act.(r)  The  alienation  of  the  husband,  therefore,  whether  volun- 

*pqQ  -1  tary,  as  by  deed  or  will,  or  involuntary,  as  by  ^bankruptcy 
L  ^  &c.  will  confer  no   title  on   the   alienee  against  the   wife, 

quoad  her  Dower,  but  she  will  be  entitled  to  recover  against  such 
alienee,  (except  as  to  damages)(5)  in  the  same  way  as  she  would  have 
recovered  against  the  heir  of  the  husband,  had  he  died  seised. 

{k)  And  see  M.  9  and  10  E.  1.  coram  rege,  rot.  24.  Ebor.  (cited  Hargr.  Co.  Litt.  S?, 
o.(n.) 

{I)  Eng.  Lutw.  230.  Winch.  80.  Cro.  Eliz.  564.  Co.  Litt.  32,  a.  Stoughton  v.  Leigh, 
1  Taunt.  410. 

(to)  Jenk.  Cent.  p.  36.  As  to  Crown  debts,  see  chap.  xvi. 

(n)   2  Preston  on  Conv.  132,  and  see  7  Co.  73. 

(o)  Jenk.  Cent.  p.  36.  37.  8  E.  1.  Fitzh.  Ass.  417. 

(  p)   1  Lev.  198. 

(y)  3  Lev.  386.  It  is  remarked  in  Godb.  323,  that  "  if  a  man  commit  treason,  he  shall 
forfeit  the  dower  of  liis  wife,  yet  he  doth  not  ffive  the  dower  of  his  wife,  but  it  goes  by  way 
of  discharge  of  those  lands." 

(r)  Co.  Litt.  32,  a.  F.  N.  B.  147  (E.)         (s)  See  chap.  xiv.  infra. 


OF  ALIENATIONS  AND  CHARGES  BY  THE  HUSBAND  ALONE.  109 

It  is  a  necessary  consequence  of  this  rule,  that  all  charges  or  derivative 
interests  created  by  the  husband,  subsequent  to  the  attachment  of  the 
wife's  title,  are  voidable,  quoad  that  j)art  of  the  land  which  is  recovered 
in  Dower,  As  if"  tenant  in  fee  simple  takes  a  wife,  and  then  makes  a 
lease  for  years,  and  dieth,  the  wife  is  endowed;  in  this  case  «h<;  shall 
avoid  the  lease,  but  after  her  decease  the  lease  shall  be  in  lorce  a^ain.f/) 

So  if  the  husband,  after  marriau;e,  acknowledj^e  a  statute,  or  recogni- 
zance, the  wife  shall  nevertheless  hold  her  Dower  discharged. («) 

And  as  the  heir  can  be  in  no  other  situation  than  the  husband,  it  fol- 
lows of  necessity  that  all  charges  made  by  the  heir  in  the  interval  [be- 
tween the  death  of  the  husband,  and  the  assit;nment  of  ^  .«  ^  -. 
Dower,  will   *be  void  as  against  the  dowress,  and  she  shall   ^  "^     I 

hold  discharged. (y) 

As  the  husband  cannot  defeat  his  wife's  title  of  Dower  by  any  alien- 
ation of  the  land  by  himself  alone,  so  neither  can  he  bind  her  by  any 
modification  of  the  nature  of  the  seisin,  or  any  merger  or  extinguish- 
ment produced  by  his  own  act,  without  her  concurrence.  All  such  op- 
erations will  take  effect  sub  modo,  and  liable  to  be  avoided,  quoad  the 
estate  of  the  dowress.(t^) 

As  if  a  person  having  a  seignory,  marries,  and  afterwards  purchases 
the  tenancy  in  fee,  or  if  the  owner  of  a  rent-charge  purchase  the  land 
out  of  which  the  rent  is  issuing,  the  widow  shall  have  her  election  to  be 
endowed  in  the  one  case,  either  of  the  seignory  or  the  tenancy,  and  in 
the  other,  either  of  the  rent  or  the  land. (a:)  The  land  might  indeed  be 
so  conveyed  as  not  to  confer  a  seisin  on  the  husband  on  which  a  title  of 
Dower  could  attach,  and  in  that  case  there  could  of  course  be  no  election 
but  it  is  clear  that  the  widow  might  demand  her  Dower  of  the  seignory, 
rent,  &c.  notwithstanding  its  extinguishment  as  to  other  purposes.  As 
in  the  case  put  by  Perkins,  "  if  grantee  of  a  rent-charge  in  fee  take  a 
wife,  and  the  grantor  lease  the  land  out  of  which  the  rent  is  issuing  unto 
a  stranger  for  life,  and  the  grantee  of  the  rent  purchase  the  j.  •04^  ■> 
reversion  *of  the  same  land,  and  the  tenant  for  life  attorn,  '-  -* 

and  the  grantee  of  the  rent  dieth  leaving  the  tenant  for  life,  his  wife 
shall  be  endowed  of  the  rent,  but  not  of  the  land,  because  the  freehold 
and  inheritance  were  not  in  the  husband  simnl  et  scviel  during  the 
coverture. ''(^)  So  if  the  owner  of  a  rent-charge,  after  marriage  releases 
the  rent  to  the  terre-tenant,  the  widow  shall  notwithstanding  be  en- 
dowed of  the  rcnt.(r)  In  this  case  the  remedy  of  the  widow  is  ng.uiist 
the  terre-tenant,  and  not  against  the  heir  of  the  husband,  for  the  heir  has 

(<)  Shep.  T.  273,  274.  Stoughton  v.  Leigh.  1  Taunt.  410.  Co.  Liu.  46,  a.  S.  P.  ■■  (o 
tenant  in  tail,  7  Co.  8,  72.  In  priicticc  this  point  is  never  oilvcrteil  to  as  to  leases  nt  rack- 
rent,  as  the  rent  is  an  equivalent  for  the  possession,  and  censes  on  evictiim,  ami  it  is  very 
improbable  that  a  dowress  would  evict  a  responsible  teniint  unless  there  is  any  grow*  dim-re- 
pancy  between  the  rent  and  the  actual  value  ;  but  as  to  building  leases,  or  other  leases  for 
the  purpose  of  improvement,  the  point  seems  to  deserve  more  attention  than  in  UKually  directed 
to  it.  The  rarity  of  actual  evictions  by  a  dowress  is  probably  the  cause  of  the  existing  ab- 
sence of  solicitude. 

{11)  Jenk.  Cent.  p.  36.   As  to  Crown  debts,  see  chap.  xvi. 

(r)   Bro.  Seisin,  pi.  18.  (cites  P.  19  E.  2.)     Co.  Lilt.  42.  a.  (cites  7  H.  b.  X.) 

(w)   Co.LiU.  32,  fl.  (.V)   Perk.  sec.  320. 

(i/)   Perk.  sec.  340. 

(z)  6  Co.  7D.  (cites  b  E.  2.  Dow.  143.  10.  20  E.  3.  27.  24  E.  3.  29.  34  Am.  I.').  22 
E.  3.  Dow.  131.  44  E.  3.  32.)  7  Co.  130,  where  see  the  form  of  the  writ  of  dower  in  .-uch 
case,  S.  P.  as  between  lord  and  tenant.     Perk.  sec.  322. 


110 


PARK  ON  DOWER. 


nothing  for  which  the  writ  can  be  broutrht,  and  though  the  tenant  has 
not  the  rent,  yet  he  has  the  land  out  of  which  the  rent  issues,  and  the 
tenant  of  the  land  pays  iL(a)  A  case  put  by  Perkins  shows  that  in  some 
instances  the  wife  may  be  benefited  by  the  release  or  surrender  of  the  hus- 
band. '-Lord  and  tenant  are  by  fealty  and  twelve-pence  [rent];  the 
tenant  taketh  a  wife,  and  the  lord  purchaseth  the  tenancy  in  fee,  and  the 
estate  is  executed  in  him,  and  the  tenant  dieth,  and  his  wife  is  endowed 
of  the  third  part  of  the  tenancy;  now  she  shall  not  be  attendant  for 
any  rent,  because  that  by  the  purchase  of  the  tenancy  in  fee  by  the 
lord,  the  seignory  was  determined,  and  a  thing  which  is  determined 
cannot  be  revived. (A) 

r  *241  1  "And  it  may  happen  in  some  cases  that  the  wife  will  con- 
clude herself  from  avoiding  charges  created  after  the  title 
of  Dower  commenced,  by  praying  damages  upon  her  recovery  in  Dow- 
er; for  as  she  can  have  no  damages  unless  the  husband  died  seised, (c) 
by  praymg  damages,  she  accepts  herself  dowable  of  that  estate  of  which 
the  husband  was  seised  at  his  death;  and  if,  at  the  time  of  the  charge 
created,  he  had  a  different  estate  in  the  land,  that  charge  will  be  sustained 
against  her;  for  of  that  estate  the  husband  did  not  die  seised;  and  if  she 
had  elected  to  take  her  dower  of  that  estate,  she  could  not  have  prayed 
damages.  As  when  A.  seised  of  lands  in  fee  married,  and  granted  a 
rent  charge,  and  afterwards  made  a  feoffment  in  fee,  and  took  back  an 
estate  tail,  and  died,  and  the  wife  recovered  Dower  against  the  issue  in 
tail  by  reddition,  and  making  a  surmise  that  her  husband  died  seised, 
prayed  a  writ  of  inquiry  to  assess  damages,  which  was  granted  to  her; 
in  this  case,  remarks  Coke,  she  holds  the  land  charged  with  the  rent 
charge,  for  by  her  prayer  she  accepteth  herself  dowable  of  the  second 
estate,  for  of  the  first  estate  whereof  she  was  dowable,  her  husband  died 
not  seised,  and  so  she  hath  concluded  herself;  wherefore  if  the  rent  charge 
be  more  to  her  detriment  than  the  damages  beneficial  to  her,  it  is  good 
for  her  in  that  case  to  make  no  such  prayer.(c^) 

It  should  also  be  observed,  that  if  the  widow  accepts  Dower  of  the 
r  *oAo  "1  ^^i'"  against  common  rights  in  *that  case  she  shall  hold  sub- 
•-  "^    -'  ject  to  the  charges  of  the  husband, (e)  at  least  asto  so  much  of 

the  land  charged  whereof  she  is  endowed  against  common  right.  As  "  if 
a  man  be  seised  of  three  manors  in  fee,  and  take  a  wife,  and  granteth  a 
rent  charge  issuing  out  of  all  the  three  manors,  and  dieth,  and  the  wife 
taketh  one  manor  by  assignment  of  the  heir  for  her  Dower,  in  allowance 
of  all  the  three  manors;  now  two  parts  of  this  manor  doth  remain 
charged  to  the  distress  of  the  grantee,  notwithstanding  that  the  grant  of 
the  rent  charge  was  made  during  the  marriage:  and  the  reason  is,  because 
that  as  to  the  two  parts  she  had  taken  her  Dower  against  common  right; 
for  according  to  common  right  she  ought  to  have  the  third  part  of  every 
manor."(/)  This  doctrine  however  appears  only  to  extend,  generally, 
to  assignments  made  without  suit,  for  it  is  added,  "  but  in  the  same  case, 
if  she  had  recovered  her  Dower,  and  such  assignment  had   been  made 

(a)  Jenk.  Cent.  1.  ca.  6,  (cites  22  E.  3.  Dow.  131.) 
(i)   Perk.  sec.  429,  (cites  M.  21  E.  3.  130.) 

(c)  See  post,  chap.  xiv.  {d)   Co.  Litt.  33,  a.  (cites  14  H.  8.  28.) 

(e)   Co.  Liit.  32,6. 

(/)  Perk.  sec.  330,  (cites  M.  26  E.  3.  133.  T.  17  E.  2.  164.)  and  see  Hargr.  Litt.  32, 
b.  note  (2.) 


OP  ALIENATIONS  AND  CHARGES  BY  THK  IirSBAND  ALOXK.  HI 

unto  her  by  the  sheriff,  she  should  have  holden  the  same  discharged. '^f^) 

But  if  a  man  be  seised  of  three  advowsons  of  three  several  cliurcbes, 
and  takelh  a  wife,  and  f^ranteth  unto  a  stranjjer  that  lie  shall  [)rf  ;ient  to 
the  next  avoidance  of  the  three  churches  which  shall  lirst  become  void, 
and  the  grantor  dieth,  his  wife  bringeth  a  writ  of  Dower  against  the  heir 
before  any  church  become  void,  and  recovereth;  and  the  sheriff  doth 
assign  unto  her  the  advowson  of  one  church  for  her  Dower  in  allowance 
of  the  "^othcr  churches,  whicli  advowson  assigned  unto  her  ,  , 
doth  first  become  void  after  the  grant  made  by  the  husband,  ^  J 

and  the  avoidance  happeneth  after  the  assignment  of  the  Dower,  it 
seemeth  unto  some  in  this  case  that  the  wife  shall  not  have  this  avoid- 
ance, but  the  grantee  sliall  have  the  same;  because  that  she  is  endowed 
against  common  right,  for  of  right  she  ought  to  have  but  the  third  avoid- 
ance of  each  advowson  of  each  church.  And  notwithstanding  that  the 
assignment  be  made  by  the  sheriff  it  shall  not  prejudice  nor  oust  the 
grantee  of  his  right,  because  he  is  a  stranger  unto  the  assignment,  and 
also  he  cannot  otherwise  take  advantage  of  his  grant,  but  only  at  this 
avoidance,  tamcn  qicerc.  ]iut  otherwise  it  is  in  case  of  a  grant  of  a 
rent-charge  out  of  three  manors,  for  when  the  assignment  is  made  by 
the  sheriff  of  one  manor  in  allowance  of  all  the  manors,  the  grantee  may 
distrain  for  the  whole  rent  in  the  other  two  manors,  and  in  every  part 
of  them;  and  it  shall  not  be  more  prejudicial  unto  the  heir  this  way  than 
the  other  way. "(A) 

It  frequently  happens  also  that  a  person  who  purchases  6o77rf^r/e  from 
the  hus!)and  after  the  title  of  Dower  has  attached,  may  protect  himself 
from  an  eviction  under  that  title,  by  taking  an  assignment  of  some  prior 
term  to  a  trustee  for  himself  This  is  a  ])oint  of  such  frequent  occur- 
rence and  discussion  in  practice,  that  the  student  should  be  recommend- 
ed to  make  himself  familiar  with  the  learning  on  the  subject  which  he 
will  find  discussed  in  a  subsequent  chaj)ter. 

■*As  a  qualification  to  the  rule  that  the  husband  cannot  ^  *oa\  n 
defeat  the  wife  of  her  Dower  by  alienation  after  marringe,  ^  "  ^ 
must  1)C  noticed  the  cases  of  alienations  by  force  of  parlicidar  customs, 
in  which  cases,  the  estate  of  the  customary  tenant  or  alienee,  takes  effect 
in  point  of  title,  by  relation  to  the  custom,  and  not  merely  from  the 
actual  period  of  the  grant.  Thus  if  the  husband  be  lord  of  a  manor,  in 
which  there  are  customary  tenements,  demiseable  for  lives  by  copy  of 
court  roll,  and  before  or  during  the  coverture,  the  lives  expire,  and  the 
lord  afterwards  grants  new  copies,  and  dies,  the  wife  shall  hold  her 
Dower  of  the  manor  subject  to  these  co])ics,  and  shall  not  avoid  them.(i) 
So  also,  if  there  be  a  custom  to  grant  copies  in  reversion,  expectant  upon 
existing  copies  for  life,  such  grants,  tiiough  made  after  the  marriage  of 
the  lord,  will  be  binding  upon  the  wife.(k-)  And  although,  in  the  case 
first  put,  the  copy  for  lives  had  determined  during  the  coverture,  and  the 
lord  had  entered,  and  kept  the  lands  for  a  time,  yet,  if  he  afterwards 
grants  a  new  copy,  the  copyholder  shall  hold  the  land  discharged  of  the 
Dowcr.(/)     The  principle  in  all  these  cases  is,  that  the  copyholder  is  in 

{^)  Ibij.  (/,)  il.ul.  .pr.  :i.Ti.aa2. 

(i)   Ijrowne's  casp,  4  Co.  24  ;  8  Co.  63.  b.  said  to  have  been  so  adjudged  ;  and  see  Sn»yJ 
V.  Sncyd,  1  Atk.  441;  and  p.  45,  supra. 

{k)   ciiam  V.  Dover,  1  Leon.  H>,  adjudpod. 

(/)  Per  Gawdy,  J.  in  Cham  v.  Dover ;  1  Leon.  IG. 


112  PARK  ON  DOWER. 

by  the  custom,  and  not  by  the  act  of  the  lord:  and  the  custom  is  para- 
^  -  1  "^ount  the  title  of  Dower. (m)  *Till,  therefore,  the  demise- 
L  J  able  quality  is  destroyed  by  non-user,  or  otherwise,  the  hus- 

band may  at  any  time  charge  the  Dower  of  the  wife  with  a  new  demise 
by  copy.  The  estate  of  the  copyholder  is  not  derived  out  of  the  own- 
ership of  the  lord,  but  the  lord  is  only  as  an  instrument  to  make  the 
grant. 

It  is  scarcely  necessary  to  mention,  that  in  order  to  afford  this  pro- 
tection against  Dower,  the  custom  must  be  strictly  persued;  and  there- 
fore where  the  custom  of  a  manor  was,  that  the  land  was  used  to  be  de- 
mised by  the  lord  of  the  manor,  or  his  overseer,  or  his  deputy,  and  a 
man  seised  in  fee  of  the  manor,  married,  and  made  his  will,  and  thereby 
gave  authority  to  certain  persons  to  make  leases  according  to  the  custom 
of  the  manor  to  raise  fines  to  pay  his  debts,  and  died;  and  those  persons 
held  a  court  in  their  own  names,  and  granted  a  reversion  belonging  to 
two  men  who  were  copyholders  to  three  others,  it  was  held,  upon  de- 
murrer, that  the  wife,  who  had  had  the  third  part  of  the  manor,  includ- 
ing these  copyholds,  assigned  to  her  by  the  sheriff,  should  avoid  the 
grant  made  by  the  persons  authorised  by  the  will.(w)  And  yet,  it 
seems  such  grant  is  good  in  other  respects,  (o) 

It  has  also  been  formerly  decided,  that  the  simple  alienation  of  the 
r  *o4R  I  husband  may  be  a  good  customary  bar  to  the  wife's  title  of 
'-''-'  Dower,  where  she  partakes  *of  the  benefit  of  the  sale,  as 
where  a  custom  was  pleaded  that  if  the  baron  aliens  the  land,  and  ex- 
pends the  money  between  himself  and  his  feme,  she  shall  be  barred 
of  her  Dower;  and  a  like  custom,  where  the  feme  receives  part  of  the 
purchase  money;  both  these  customs  were  held  good.(^)  The  writ- 
er is  not  aware  that  any  such  customs  are  considered  as  existing  at  this 
day. 

It  should  also  be  noticed  as  the  prevailing  impression  of  the  profession 
that  under  enabling  acts,  such  as  those  of  the  West-India  and  London 
Dock  companies,  the  Grand  Junction  Canal,  and  the  improvements  at 
Temple  Bar,  Snow  Hill,  and  Smithfield,  the  wife's  title  of  Dower  will 
be  bound  by  the  alienation  of  the  husband,  although  the  title  is  taken  by 
way  of  conveyance  only,  and  the  purchase  money  is  not  invested  in 
other  lands,  or  paid  into  the  Bank.  This  is  understood  to  have  been 
the  opinion  of  several  gentlemen  of  high  professional  reputation,  in  an- 
swer to  the  requisition  of  an  eminent  conveyancer,  who,  on  the  behalf 
of  the  corporation  of  London,  had  called  for  fines  from  vendors  whose 
wives  had  titles  of  Dower,  and  the  writer  believes  that  the  subsequent 
practice  in  the  great  majority  of  cases  has  been  to  dispense  with  fines. 

(m)  1  Leon.  16,  in  Cham  v.  Dover  ;  8  Co.  63.  b.  in  Swayne's  case  ;  4  Co.  2d,  in  Browne's 
case.  In  Cordel  v.  Clifton,  2  Leon.  1.52,  a  different  and  mistaken  reason  was  assigned  by 
Periam,  J.  viz.  that  the  title  of  dower  is  not  consummated  before  the  death  of  the  husband, 
so  as  the  title  of  the  copyholder  is  completed  before  the  title  of  dower.  This  reason  would' 
equally  prove,  that  every  estate  made  by  the  husband  during  the  coverture,  would  prevail 
against  the  dower. 

(n)  Slowman's  case,  Dy.  2.51.  a.;  1  Leon.  16.  S.  C.  cited. 

(o)  Co.  Litt.  ,58.  b. 

(/>)  Bro.  Customs,  pi.  78  (cites  3  Ed.  3  ;)  pi.  53  (cites  20  E.  3.)  Bracton  says,  that 
there  is  a  custom  in  Lincoln,  that  if  the  husband  sell  his  inheritance  for  need,  his  wife  shall 
not  have  dower  of  it,  but  otherwise  if  he  mortgage  it,  or  make  a  lease  thereof  for  need. 
I3ract.  309. 


OF  THE   DEATH  OF  THE  HUSBAND.  113 


*Cir AFTER  XII.  [    -247     ] 

Of  the  CONSUMMATION  of  the  title  op  dower  Ijj/  the  death  of  the 

husband. 

The  last  circumstance  requisite  to  the  completion  of  a  title  of  Dow- 
er, is  the  death  of  the  husband. («)  PVom  this  period,  the  incipient 
title  which  existetl  in  tlic  wife  durinj^  the  coverture,  becomes  consum- 
mated and  perfected,  and  her  right  of  action  to  obtain  the  fruits  ol  that 
title  commences. 

It  seems  to  have  been  the  old  law  that,  where  it  could  not  be  made 
to  appear  positively  that  the  husband  was  dead,  as  where  he  was  absent 
beyond  seas,  and  no  intelligence  of  him  could  be  obtained,  the  wife 
might  recover  Dower  conditionally,  viz.  that  if  he  did  return  from  be- 
yond seas,  she  should  render  back  her  Dower  to  the  fcoflec  of  the  hus- 
band, without  suit,  and  receive  the  prolits  in  the  mean  time,  wiih  sufli- 
cient  sureties  on  her  part  to  do  the  same,  or  otherwise  the  tenant  to  keep 
the  land.(Z») 

In  a  later  case,  where  issue  was  taken  upon  the  death  or  life  of  the 
husband,  the  demandant  brought  two  witnesses,  wliereof  one  was  the 
brother  of  her  husband;  but  their  testimony  tended  to  no  full  proof,  but 
only  by  conjectures  and  presumptions,  viz.  *'  because  the  ^  ♦24s  i 
husband  departed  the   kingdom  in  *the  first  year  of  Queen   L  ^ 

Mar)^,  on  account  of  his  religion,  and  was  a  minister,  and  for  these 
seven  years  has  been  absent,  and  in  this  time  of  this  religion  restored 
here,  he  is  not  come  back,  nor  can  any  merchant  of  that  country,  sc.  of 
Germany,  or  Englishmen  who  travel  in  those  parts,  tell  of  his  Ijcing 
alive,  nor  is  there  any  token  of  it;  wherefore  they  conclude  in  their 
consciences,  that  they  rather  think  him  dead  than  alive."  And  no  wit- 
ness of  the  life  of  the  man  being  produced  by  the  tenant,  judgment  was 
given  upon  this  evidence  for  the  demandant.  And  a  case  was  cited  of 
M.  2  E.  II.  24,  where,  in  Ciii  in  vita,  the  death  of  the  husband  of  the 
demandant  was  proved  by  four,  who  agreed  in  all  points,  and  at  the 
essoin  day,  the  tenant  produced  twelve  proofs  of  the  life  of  the  man, 
who  also  agreed  in  all  points,  which  proof  was  holden  stronger,  where- 
fore the  demandant  was  barred,  (c) 

It  is  observable  that  this  question  of  the  death  of  the  husband,  when 
brought  in  issue  on  a  writ  of  Dower,  is  not  triable  by  a  jury,  but  by  the 
court,  y;er  testes;{(l)  and  it  has  been  said,  that  after  the  court  have  given 
judgment  upon  the  proofs,  the  matter  shall  never  be  broueht  in  question 
again  upon  better  proofs,  for  this  is  in  cllert  to  attaint  the  court,  and  im- 
peach their  credit. (e) 

It  has  been  formerly  held,  that  the  civil  death  oi"  tlie  bus-  ,     ,^,  ^^     . 
band  by  his  entry  into  religion,  shall  not  consummate  'his  l 
wife's  title  of  Dower,  although  his  heirs  should  inherit  immediately,  and 
the  reason  is  saiil  to  be  because  he  cannot  be  professed  in  religion  with- 


(rt)   Litt.  sec.  36. 

ib)  Hughes'  Writs,  159  (cites  Bract.  302.  pi.  2.);  ami  mo  Woman  •  Lawyer,  p.  -74. 

(f)  Thorne  v.  Rolff,  Dv-  IS;''-  <»•:  1  And.  20  ;  Moor.  1 1.  15  ;  Bendl.  S9.  y.  C 

(</)  See  Thorne  v.  Kol'fe,  Moor.  H.  (r)  Hard.  127.  arg. 

Vol.  XL— 2  L 


114  PARK  ON  DOWER. 

out  her  consent  and  agreement,  otherwise  she  might  deraign  him,  and 
so  by  her  own  assent,  she  in  a  manner  vows  chastity  as  well  as  her  hus- 
band.(/) 

But  this  question  cannot  now  arise.  Even  when  popery  prevailed 
in  this  country,  and  professed  persons  were  legally  established  here,  it 
was  held  that  a  profession  in  religion  in  any  foreign  country,  did  not 
work  a  disability  in  this,  because  the  fact  could  not  be  tried ;(5-)  and 
since  the  reformation,  as  there  can  be  no  legal  profession  in  this  country, 
the  ancient  disability  from  it  has  entirely  ceased. (A) 

It  is  stated  in  the  old  law  books,  that  the  wife  of  a  man  who  is  ban- 
ished by  abjuration,  or  by  act  of  Parliament,  shall  recover  her  Dower  in 
his  lifetime,  for  this  is  a  civil  death. (/) 


[     *250     ]  *CHAPTER  Xlir. 

O/" ASSIGNMENT  o/ DOWER. 

By  the  statute  of  Magna  Charta,  cap.  7,  it  was  provided,  that  the 
widow  should  "tarry  in  the  chief  house  of  her  husband  by  forty  days 
after  the  death  of  her  husband, (a)  within  which  days,  her  Dower  should 
be  assigned  her,  if  it  were  not  assigned  her  before;  or,  that  the  house  be 
a  castle;  and  if  she  depart  from  the  castle,  then  a  competent  house  should 
be  provided  for  her,  in  which  she  might  honestly  dwell  until  her  Dower 
was  to  her  assigned  as  it  is  aforesaid,  and  she  should  have  in  the  mean 
time  her  reasonable  estovers  of  the  common.  (Z») 

^^..     -|       *In  this  chapter  it  is  to  be  considered, 
1-      "         J       I.  In  what  manner  Dower  is  assignable,  with  regard  to 
the  subject  matter  or  property  to  be  assigned,  whether  by  the  sheriff  or 
other  persons. 

(/)  Perk.  sec.  307  Ccites  10  H.  3.  Dow.  200.)  Jenk.  Cent.  l.ca.  4.  32  E.  1;  Dow.  17C; 
Filz.  N.  B.  150.  (F)  (cites  13  E.  19.  Dow.  161.)     Co.  Litt.  132.  b. 

{g)   Co.  Litt.  132.  b.\  2  Roll.  Abr.  4.1.  b. 

(k)  Glib.  Uses,  by  Sugd.  87.  n.  (cites  Roll.  Abr.  ubi  supra)  Rex  v.  Lady  Portington,  1 
Salk.lC2  ;  Wright's  Ten.  p.  28.  n.  (Y);  Hargr.  Co.  Lilt.  3.  h. 

(i)  Jenk.  Cent.  1.  ca.  4;  and  see  Co.  Lilt.  133.  a.  In  Cotton  v.  WestcoU,  3  Bulstr.  188, 
it  was  said  by  Coke,  C.  J.  that  in  Wcyland's  case,  18  E.  1,  the  wife  brought  her  writ  of 
dower,  after  VVeyland's  banishment,  and  it  was  held  the  same  did  not  lie,  though  she  was 
afterwards  held  entitled  to  her  jointure,  but  in  the  case  of  the  wife  of  Sir  Robert  Belknap, 
temp.  H.  4  (see  Moore,  851;)  Belknap  was  banished,  and  his  wife  had  her  dower.  Dod- 
dridge, J.  added,  that  in  10  E.  3  (see  1  Roll.  R.  400,)  the  wife  of  Matravers  brought  a  writ 
of  dower,  her  husband  being  in  banishment,  and  held  maintainable. 

(a)  And  be  sustained  with  victuals  there,  Jenk.  cent.  7,  ca.  16.  But  contra  per  Newton, 
F.  N.  B.  162.  (A.)  marg.  But  adds,  that  Fitzherbert  in  abridging  the  case,  queries  if  she 
may  not  kill  any  thing  for  her  provision,  if  there  be  not  any  provision  in  the  house. 

(A)  Mr.  Barrington  remarks,  that  "  one  of  the  reasons  for  the  widow  continuing  forty  days 
within  the  capital  messuage,  was  to  prevent  a  supposititious  child,  which  deceit  was  not  un- 
commonly practised  in  those  times,  as  may  be  inferred  from  the  old  writ  De  ventre  inspici- 
eiido."     Obs.  Anc.  Stat.  10. 

If  during  this  forty  days,  or  quarentine.  as  it  was  called,  the  heir  or  tenant  of  the  land  put 
her  out,  the  widow  might  have  hor  writ  J)e  qnarentina  habeiula.  Gilb.  Dow.  372.  F.  N.  B. 
1(31.  But  her  habitation  in  the  hou-e  is  personal  to  her  in  respect  of  her  widowhood,  and 
thi^rcfore,  if  she  marries  within  the  forty  days,  she  loses  her  quarentine.  Co.  Litt.  34.  b.  32.  b. 
It  has  been  made  a  question,  whether  a  woman  staying  in  the  house  of  her  husband  during 
hir  quarentine,  may  defend  the  possession  thereof  with  force.     Dy.  161.  a. 


OF  ASSIGNMENT  OF  DOWEH.  1  15 

II.  What  persons,  in  respect  of  interest  in  the  land,  are  competent  to 
make  a  valid  assi;;nmeiit  of  Dower,  in  pais,  namely,  when  it  is  not  oa- 
signed  by  the  sheritVor  conirnissioncTS  upon  suit. 

I.    In  what  nKuiner  Dowi-r  shall  hu  assigned,  and  therein, 

1st.   Of  assignment  according  to  common  right. 

Unless  hindered  by  the  [)eculiar  circumstances  of  the  property,  or  the 
nature  of  the  tenancy  therein,  the  widow  has  a  right  to  have  her  Dower 
assigned  to  her  in  severalty,  "  by  metes  and  boun{ls."(c)  The  reason 
assigned  by  Chief  Baron  Gilbert  is  because  it  was  a  tennucy  of  ihe  heir, 
and  like  all  other  lands  in  tenure,  ought  to  be  separated  from  the  de- 
mesnes of  the  nianor.(r/) 

Where,  indeed,  the  husband  was  himself  seised  in  common,  or  in  co- 
parcenary, there  the  wile  cannot  have  her  Dower  assigned  by  metes  and 
bounds,  but  shall  have  the  third  jjarl  of  the  share  of  her  husband  to  hold 
in  common  with  the  heir,  and  the  other  tenants.(e) 

*And  of  some  property  of  the  husband  whereof  the  wife  ^     •    c 
may  be  dowaide,  she  shall  not  have  an  assignment  by  metes  I-  J 

and  bounds,  by  reason  that  the  thing  itself  is  of  such  a  (juality  that  no 
division  can  be  made  thereof,  and  therefore  she  shall  be  endowed  in  a 
special  manner.  As  of  a  mill,  a  woman  shall  not  be  emlowed  by  metes 
and  bounds,  nor  in  common  with  the  heir,  but  she  may  be  endowed 
either  of  the  third  tolle-dish,  or  of  the  entire  mill,  for  every  third 
month. (7) 

So  of  many  other  hereditaments  which  are  not  manurable,  she  shall 
be  endowed  specially,  of  a  third  part  of  the  profit s.[g)     As  of — 

A  piscary  ;(/i) 

Offices;(z) 

A  fair;(/t') 

A  market;(/) 

A  dove-house ;(?«) 

Courts,  fines,  heriots;(n) 

The  keepership  of  a  park.(o) 

The  entirety,  however,  of  any  such  hereditaments  may,  by  agreement 
of  competent  parties,  be  assigned  *to  the  wife  in  allowance  ^  •^cq  i 
of  her  Dower  of  other  property. (/j)  L       -         J 

And  it  seems  that,  although  a  third  part  of  the  profits  only  is  assigned 
to  the  wife,  she  shall  thereby  have  tlie  freehold  of  a  third  part  of  the 
hereditament  itsell'.(y) 

Of  an  adowson  in  gross,  she  shall  be  endowed  of  the  third  part  by 

(r)  Litt.  sec.  .36  ;  Co.  Litt.  3i,  b.  (cites  '^0  E.  .}.  Hurrc.  132.  ir)  E.  3.  C.  Ficla.  1,  ."i.  23.) 
Perk.  sec.  411.  414. 

{(l)  Gilb.  Uses,  356.  397. 

(f)  Liu.  sec.  44  ;  Co.  Litt.  .32.  b.-  2  Raym.  785.  F.  .\.  D.  149  ;  Perk.  mc.  413  ,  but  we 
Gilb.  Uses,  397. 

(  f)  Co.  Litt.  33.  a.  (cites  1  Ro.  .\hr.  f)S2.  Bract.  1.  2.  f.  97.  b.  23  H.  3.  lit  Am.  435. 
45  E.  3.  Dow.  50.)  Perk.  sec.  342  ;  -\.  IKiuil.  120  ;  and  »ce  2  Keb.  8.  4  I;  Feik.  lec.  415. 
where  it  is  added,  "  And  she  shall  tjrind  tlicre  toll  tree."     F.  I\.  li.  149  (K.) 

(jr)   iSeo  ante  p.  1 12. 

(A)   Viz.  tevtium  piscem  vel  jactum  rrtig  lertium.  Co.  Litt.  32.  a. 

(,!)   Il.id.  F.  N.  15.  8,  note  (6)  149  (K.) 

(A)  Il.id.  (/)  Ibid.  Gilb.  Dow.  37 L 

(wi)   Co.  Litt.  32.  a.  (n)  Ibid. 

(o)   Ibid.  (/>)  .*^ec  the  iuccceding  section  of  ihii  chtpler. 

Iq)  See  F.  N.  B.  8.  note  (Z.,)  149  (K.) 


116  PARK  ON  DOWER. 

presenting  at  every  third  avoidance  ;(r)  or,  of  the  moiety  of  an  adowson 
in  gross,  by  presenting  at  every  sixth  avoidance.(5) 

As  to  tithes,  it  was  held  in  the  Countess  of  Oxford's  case,  that  the 
most  equal  assignment  is  of  the  third  sheaf;  for  if  the  garbs  of  the  third 
part  of  the  aral)ie  land  were  assigned,  it  would  be  in  the  election  of  the 
terre-tenant,  whether  he  would  sow  it  or  not.(^)  But  it  seems,  that  the 
assignment  is  good,  though  the  tithes  of  the  third  yard  land  be  as- 
signed.(?^) 

In  Dower  of  the  tithes  of  wool  and  lambs,  it  was  demanded  of  the 
court  how  the  sheriff  should  deliver  seisin,  and  the  court  held  it  the  best 
way  for  the  sheriff  to  deliver  the  third  part  of  the  tenth  part,  and  the 
third  tenth  lamb,  viz.  the  thirtieth  lamb.(z>) 

Of  mines,  which  were  opened  in  the  lifetime  of  the  husband,  whether 
in  his  own  land,  or  in  the  lands  of  others,  it  was  held  in  a  late  case,  that 
the  slieriff  may  lawfully  execute  his  duty  by  assigning  such  a  number  of 

^^  1  *them  as  may  amount  to  one-third  in  value  of  the  whole,  or 
L  "'  -'by  directing  separate  alternate  enjoyment  of  the  whole  for 
short  periods,  or  by  giving  the  widow  a  proportion  of  the  profits.(tt') 

It  is  said  that  the  heir  is  not  compellable  to  assign  unto  his  mother  for 
her  Dower  the  capital  messuage  which  was  his  father's,  or  any  part 
thereof,  although  she  be  dowable  of  the  same.  But  he  may  assign  unto 
her  other  lands  and  tenements,  of  which  she  is  dowable,  in  allowance  of 
the  capital  messuage. 

But  if  there  are  not  any  other  lands  or  tenements  of  which  she  is 
dowable,  and  the  heir  assigns  unto  her  a  chamber  in  the  capital  mes- 
suage, in  the  name  of  Dower,  and  in  allowance  of  the  same  messuage, 
and  she  agrees  thereto,  it  is  a  good  assignment.  But  it  seemeth  (says 
Perkins),  she  is  not  compellable  to  take  the  same,  because  the  messuage 
is  as  it  were  an  entire  thing;  and  it  shall  be  but  trouble  and  vexation 
unto  a  woman  to  have  a  chamber  within  the  house  of  another  man;  and 
if  she  will  not  agree  unto  the  same,  then  the  heir  may  assign  unto  her  a 
rent  issuing  out  of  the  same  messuage  in  the  name  of  her  Dower.(a:) 
r-  iSQfjt;  n  *It  ^^  difficult  to  gather  from  the  books  any  distinct  pro- 
■-  J  position,  as  to   the  mode  in  which  the  proportion  of  the 

dowress  is  to  be  estimated  and  ascertained,  in  setting  out  her  Dower. 
It  is  obvious,  that  if  regard  were  to  be  had  to  the  quantity  alone,  a  mere 

(r)  Perk.  sec.  342 ;  Co,  Litt.  32.  c;  3  Leon.  155 ;  17  E.  3.  38.  6.;  contra  17  E.  3.  22.  b. 

(s)  Woman's  Lav?yer,  1632.  4to.  p.  98. 

(i)   1 1  Co.  25.  6.;  Co.  Litt.  32.  a.;  Roll.  Rep.  68. 

(w)  Kettleby's  case,  Hargr.  Co.  Litt.  32.  a.  n.  (3.) 

(t))  Anon.  Brownl.  126. 

{iv)  Stoughton  V.  Leigh,  1  Taunt.  410.  Some  observations  have  already  been  made  on 
this  caise,  at  p.  116,  to  which  the  reader  is  requested  to  refer. 

(x)  Perk.  sec.  406  (cites  H.  33  H.  6.)  sec.  342  (cites  M.  45.  E.  3.  Dow.  50.  16  Ass. 
41.)  The  author  of  The  Woman's  Lawyer,  1632,  4to,  observes,  that  "  by  the  old  v?riters, 
a  woman  cannot  challenge  a  castle,  chief  mease,  or  head  of  any  barony  or  county,  or  any 
thing  within  the  close  or  circuit  of  the  chief  mease  to  be  assigned  her  in  dower,  but  for 
her  habitation  she  may  choose  aliquod  honestum  messuagium  de  villenaffiis,  that  is,  some 
bond  tenements  within  the  manor.  And  where  there  is  none  such  to  choose,  she  shall  have 
one  clapped  up  for  her  in  aliqua  platea  competenti  de  communi  bosco,  as  long  and  broad  as 
the  third  part  of  her  husband's  chief  house.  If  there  be  neither  base  tenement,  nor  wood, 
nor  ground  wherewith  and  whereon  to  build  a  widow's  habitacle,  she  may  be  endowed  (for 
necessitv,)  of  the  principal  messuage,  and  without  necessity  always,  if  the  heir  be  so  con- 
tented."'   p.  99,  100. 


OF  ASSIGNMENT  OF  DOWEB.  1  1  7 

illusory  assipfnment  mie;ht  be  made,  by  setting  out  a  tract  of  land  of  lililc 
or  no  annual  value;  and  in  modern  times,  the  relative  value,  even  of  ad- 
jacent property,  is  often  enormously  disproportionate,  in  con!«c(iucnce  of 
buildings,  and  numberless  oilier  circumstances.  Tliat  an  Jssi^nment  of 
onc-tliird  in  v;due,  and  not  iti  point  of  (jiiantilij  merely,  was  wbat  was 
contemplated  by  tbe  old  law,  admits  of  no  doubt;  but  in  tbe  simple  state 
of  property  in  former  times,  it  is  probable  that  the  only  provision  that 
was  made  for  the  security  of  the  dowress  was,  by  requiring  that  the 
sheriff  should  assiy;n  to  her  a  third  part  of  each  existing  denomination 
of  property.  Thus,  he  was  bound  to  assign  her  a  third  [)nrt  of  each 
manor,  if  there  were  several;  or  a  third  j)art  of  the  arable,  a  third  part  of 
the  meadow,  and  a  third  part  of  the  pasture. (_y)  In  assignments  by  the 
heir,  it  was  a  matter  of  arrangement  between  him  and  the  widow,  what 
particular  portion  of  the  property  should  be  set  out,  and  if  they  could 
not  agree,  she  resorted  to  her  suit. 

With  some  apparent  dereliction  of  principle,  we  find  it  asserted  by 
Perkins,  that  buildings  or  other  *imj)rovements  made />_y //it  _  •orr  i 
alienee  nfihe  husband,  shall  not  be  included  in  the  compu-  ^  ^  J 
tation  of  value  on  the  endowment  of  the  wife.  The  passage  is  as  fol- 
lows. "  If  a  man  be  seised  of  twenty  acres  of  land  in  fee,  and  taketh  a 
wife,  and  enfeolfeth  a  stranger  of  the  land,  and  the  feoffee  build  there- 
upon a  castle,  or  a  mansion-house,  or  other  bid/diin^s,  or  otherwise 
doth  improve  it,  so  as  it  is  worth  more  by  the  year  than  it  was  in  the 
possession  of  the  husband,  the  wife  shall  not  have  Dower  but  according 
to  the  value  it  was  at  in  the  time  of  the  husband.  And  yet,  if  a  dis- 
seisor build  upon  land  which  he  hath  by  disseisin,  and  the  disseisee 
enter,  he  shall  have  the  building,  &.C.;  ami  so  shall  it  be  if  the  feoffee 
upon  condition  broken,  &.c.  the  difference  is  apparent. "(r) 

So,  in  tlie  book  of  assize,  wc  find  that  a  woman  demanded  Dower  of 
the  third  part  of  land,  and  the  tenant  said  that  he  bought  the  land  of  her 
husband,  not  being  built  upon,  and  that  he  builded  upon  it,  and  she  had 
judgment  of  the  third  part,  sa/vis  eclificiis;  and  it  is  added  with  some 
"inconsistency,  and  no  damages,  because  the  land  was  amended  by  build- 
ing upon  it.(«) 

The  reason  for  this  is  assigned  in  one  of  the  books,  because  the  heir 
is  not  bound  to  warrant  except  according  to  the  value  as  it  was  at  the 
time  of  the  feoffment,  and  so  the  wife  would  recover  more  against  the 
feoffee  than  he  would  recover  in  value,  which  is  not  reasonable. (A) 

*0n  the  other  hand,  it  is  said,  if  a  woman  is  entitled  to  ^  .^^^  , 
have  Dower  of  a  marsh,  and  the  heir  by  his  industry  makes  '  ' 

it  good  meadow,  she  shall  recover  and  have  Dower  as  now  it  is,  because 
the  title  is  to  the  quantity  of  the  land,  and  not  to  the  value;  but,  if  the 
heir  hath  improved  it  by  building,  or  any  collateral  improvement,  it  is 
otherwise,  (c)  The  latter  point  is,  however,  slated  contrary  by  Lord 
Coke.(^/} 

{y)   1  Roll.  Abr.  683.     See  however  12  E.  4.  2  ;  Bro.  Dow.  72.  contra. 
(r)   Perk.  sec.  328  (cites  M.  17  H.  3.  192;)  and  sou  30  E.  I.  Uow.  81. 

\l)  Har5rCo?Litt.32.  a.  n.  (8)  ^cilea  I  H.  5.  11.  17  E.  3.  17  H.  3.  Dow.  l'J2.  31  E. 
1.  Vouch.  2SS.) 

(c)    13  H.  3.  Dow.  292  j  Co.  LiU.  32.  o. ;  Plow.  Qu.  IG. 
Id)   Co.  Litt.  32.  a. 

2  L  ^ 


118  PARK  ON  DOWER. 

It  is  probably  difficult  to  find  any  satisfactory  reason  for  the  distinc- 
tion. A  house  erected  upon  another  man's  land,  becomes  attached  to, 
and  parcel  of  the  freehold,  and  ensues  the  title  of  the  land ;  and  if  it  shall  go 
with  the  land  to  the  person  absolutely  entitled  thereto,  it  is  not  easy  to 
understand  why  it  shall  not  also  become  subject  to  particular  interests  in 
the  land.  The  understanding  of  the  profession,  the  author  believes  to 
be,  that  the  wife  shall  be  endowed  of  the  land  as  she  finds  it  at  the  time 
of  her  title  of  Dower  consummated,  and  the  succeeding  passage  in  Per- 
kins is  strictly  consonant  with  that  proposition,  viz. 

"  But  if  a  man  seised  of  land  in  fee,  upon  which  there  is  building, 
that  by  reason  thereof  is  worth  Ad.  more  by  the  year,  and  he  taketh  a 
wife,  and  enfeoffeth  a  stranger,  who  takes  down  the  building,  and  the 
feoffer  dieth,  the  wife  shall  have  Dower  according  to  the  value  of  the 
land,  as  it  was  at  the  time  of  the  death  of  the  husband,  and  hath  no 
remedy  for  the  taking  away  of  the  building  before  the  death  of  the  hus- 
band, notwithstanding  that  the  building  was  upon  the  same  land  in  the 
^  1  possession   of  the  husband  *during  the   coverture;  for  the 

L  J  wife  hath  not  right  to  have  Dower  before  the  death  of  the 

husband.      Tamen  qnsere  of  this  case. "(e) 

So  also  it  is  stated  by  Coke,  that  "  if  the  value  be  impaired  in  the 
time  of  the  heir,  she  shall  be  endowed  according  to  the  value  at  the 
time  of  the  assignment,  and  not  according  to  the  value  as  it  was  in  the 
time  of  her  husband.'-*(/) 

In  the  late  case  of  Stoughton  v.  Leigh,(^)  it  was  the  opinion  of  the 
Court  of  Common  Pleas,  that  where  a  husband  is  seised  of  lands  wherein 
there  are  mines  open  and  wrought  in  his  life-time,  the  sheriff  must  esti- 
mate the  annual  value  of  the  open  mines,  as  part  of  the  value  of  the 
estates  of  which  the  widow  is  dowable.  No  authority  was  referred  to 
for  this  opinion,  and  it  may  perhaps  be  considered  as  encountered  by  a 
passage  in  Chief  Baron  Gilbert's  Tract  on  Dower,  which  was  not  ad- 
verted to  in  the  argument.  The  passage  is  as  follows.  "  If  the  wife, 
after  the  assignment  of  Dower,  do  improve  the  land,  and  make  it  better 
than  it  was  at  the  time  of  the  assignment,  an  admeasurement  does  not 
lie  of  that  improvement.  14  H.  3.  Admeasurement  10.  13  E.  1. 
ibid.  17;  but  if  the  improvement  be  by  casualty,  as  a  mine  of  coals,  or  of 
lead,  which  are  in  the  land,  &c.  which  have  been  occupied  in  the  hus- 
P  *c)cn  -1  band's  *time,  the  doubt  is  the  more;  but  she  shall  not  dig 
'-"'-'  new  mines,  for  that  would  be  waste.  The  distinction  touch- 
ing the  mine  seems  to  be  this,  that  where  a  mine  is  not  open,  she  cannot 
work  it  at  all,  because  it  will  be  waste;  if  it  be  open,  and  in  work,  it 
seems  to  be  only  a  casual  j)T0 fit ;  and  a  casual  profit  shall  not  avoid  an 
assignment,  or  be  so  admeasured  as  to  vacate  it,  since  it  is  not  certain  to 
continue  during  the  life  of  the  dowress;  and  therefore  not  to  he  com- 
puted into  the  value  of  that  part  luhich  she  possesses,  unless  the  value 
was  co-extensive  [in  point  of  duration]  with  the  estate  which  she  is  to 
have  in  it."(/i) 

(e)  Perk.  sec.  329.  In  14  H.  4.  33,  it  is  made  a  query  if  the  heir  decay  the  land,  tene- 
ments, or  houses,  if  the  wife  shall  be  endowed  in  the  land  according  to  the  value  when  it 
was  in  the  possession  of  her  husband,  or  shall  have  the  third  part  as  it  is,  and  have  allow- 
ance for  the  improving.     See  also  Plowd.  Qu.  46. 

(/)  Co.  Litt.  32.  a.;  (cites  30  E.  1.  Vouch.  298.) 

(^)  1  Taunt.  402.  (A)  Gilb.  Dow.  390. 


OF  ASSIGNMENT  OF  DOWEH.  1  1 '» 

In  Hoby  v.  Hoby(/)  (1683),  the  subject  seems  to  have  been  viewed 
in  mucli  the  same  li^ht  as  it  was  in  the  later  case  of  Stou^hton  v.  LeiKh. 
In  that  case  the  tenant  came  into  ef|uily  to  l)e  relieved  against  an  awi^n- 
ment  of  Dower  by  the  sherid',  cliargin^  fraud  and  colhnion,  atul  that 
there  had  been  assii;ned  to  the  defendant  for  her  Dower  one  full  third 
part  of  the  lands,  wliich  amounted  to  300/.  per  annum;  and  that  in  this 
third  part  there  was  a  coal  work,  which  one  year  with  another  was  worth 
300/.  per  annum  beyond  all  charges,  and  yet  no  consideration  was  had 
of  it  in  the  assignment  of  Dower.  It  appears  from  the  Register's  hook, 
that  the  court  projjosed  to  the  parties  that  the  defendant  .•should  either 
take  300/.  per  annum,  tlie  sum  originally  proposed  to  he  settled  on  her 
by  articles  before  marriage,  or  that  she  shouUl  work  all  the  coal-pits, 
and  dig  coals,  as  well  on  the  plaintilF's  land,  as  the  land  assigned  the  de- 
fendant in  Dower,  and  to  take  a  third  peimy  thereof,  or  else  a  new  writ 
*of  seisin  on  the  judgment  in  Dower  should  be  issued  to  ,  mnrn  -i 
the  sheriff,  to  divide  the  lands  into  three  parts,  and  to  choose  '  J 

by  lot;  the  defendant  thereupon  consented  to  accept  a  third  penny  of  the 
clear  ])rofits  of  the  said  estate,  j)rovidcd  she  might  have  it  allotted  to  her 
out  of  the  lands  and  coal-works  already  allotteil  her  in  Dower,  which  not 
being  opposed  on  the  part  of  the  jjlaintitr,  was  so  decreed,  and  the  de- 
fendant was  to  be  at  liberty  to  break  or  make  any  new  mouths  to  the 
said  coal-pits,  in  any  part  of  the  plainlilV's  laruls,  not  assigned,  or  any 
part  of  the  lands  assigned  ber  in  Dower,  and  to  work  the  same  as  she 
should  think  fit,  and  should  at  any  time  sink  pits,  work,  dig,  and  carry 
away  coals  in  and  from  any  part  of  the  plaintiff's  lands,  not  assigned  in 
Dower,  as  well  as  in  what  lands  arc  assigned,  the  defendant  in  Dower 
allowing  and  accounting  to  plaintilV  two-third  parts  of  the  clear  profits, 
and  the  defendant  was  to  have  an  allowance  of  40/.  jjer  aimum  out  of 
the  plaintill's  two-thirds  of  the  jjrolits  to  repair  the  mansion-house.(A*; 

What  weight  would  have  been  allowed  to  the  proposition  of  (lilbert, 
in  the  particular  case  of  mines,  if  that  authority  had  been  adduced  to  the 
court  in  Hoby  v.  Hoby,  and  Stoughton  v.  Leigh,  it  is  not  for  the  author 
to  determine;  but  from  the  language  of  the  certificate  in  the  latter  case, 
it  may  l)e  gleaned  as  the  impression  of  the  court,  that  in  assigning  Dower 
by  the  sherilf,  the  one-third  of  the  widow  is  to  be  ascertained  by  refer- 
ence to  a  general  estimate  of  the  annual  value.  The  purposes  of  sub- 
stantial justice  may  propably  be  better  consulted  by  the  adoption  of  this 
^principle,  than  by  a  strict  adherence  to  the  old  rule  requir-  ,  .^g.  , 
ing  the  sherifl'to  assign  a  third  part  of  each  denomination  of  l-  *"  ^ 
property;'  but,  as  the  authorities  on  this  head  were  not  brought  before 
the  court  in  Stoughton  v.  Leigh,  that  case  can  hardly  be  considered  as 
overruling  the  more  ancient  decisions,  j)articularly  as  the  jiu!ge«  ex- 
pressed themselves  as  declaring  their  imj)ressions  of  what  the  existing 
law  was,  rather  than  as  pronudg.iling  any  new  exposition  thereof. 

It  seems  that  a  rent  may  be  reserved  for  equality  of  Dower,  if  the 
thin"-  assigned  be  of  greater  value  than  the  dowress  ought  to  have.  Hut 
it  is  added,  that  this  cannot  enure  as  a  reservation,  if  the  wife  in  another 
clause  of  the  deed  makes  a  grant  of  a  rent  without  any  mention  in  the 
deed  that  the  thing  is  of  greater  valuc.(/) 

(/)    1  Vcrn.  218.  3  CI.  Ca.  IfiO.  (A.-)  R05.  Lib.   1683.  A.  f.  256. 

(/)   17  E.  3.  10. 


120  PARK  ON  DOWER. 

In  some  cases,  the  widow  may  be  put  to  her  election  to  take  her 
Dower  out  of  one  or  the  other  of  different  estates  on  which  she  is  dow- 
able,  and  will  be  restrained  from  demanding  Dower  of  both.  Thus,  if 
a  man  seised  of  one  acre  in  fee,  takes  a  wife,  and  exchanges  the  same 
acre  with  a  stranger  for  another  acre  of  land,  and  the  exchange  is  ex- 
cuted,  and  the  husband  dies,  the  wife  has  a  title  of  Dower  upon  both 
acres,  but  she  must  elect  to  have  Dower  either  of  the  acre  which  the 
husband  ga^-e  in  exchange,  or  of  the  acre  which  he  took  in  exchange, 
and  she  shall  not  have  Dower  of  both.(7w) 

«ofio  1  *Some  other  cases  of  election  have  been  noticed  in  a  pre- 
^       -  -'     J  ceding  chapter. (t?) 

2dly.  Of  assignment  contrary  to  common  right. 

An  important  distinction  prevails  between  an  assignment  of  Dower 
made  by  the  sheriff,  in  pursuance  of  a  juflgment  at  law,  and  a  voluntary 
assignment  made  by  the  lieir  or  grantee.  In  the  former  case,  the  rules 
of  law  as  to  the  modes  in  which  Dower  shall  be  assigned  according  to 
the  particular  nature  and  circumstances  of  the  property,  are  to  be  strictly 
pursued, (o)  for  although  the  wife  should  consent  to  take  her  Dower  in 
some  other  manner  than  that  due  of  common  right,  yet  the  sheriff  cannot 
bind  the  heir  or  tenant,(/>)  whose  assent  to  an  assignment  against  com- 
mon right  is  as  necessary  as  that  of  the  wife;  but  on  a  voluntary  assign- 
ment by  the  heir  or  terre-tenant,  the  parties  may,  by  mutual  agreement, 
waive  a  strict  assignment  according  to  the  rules  of  law;  and  make  such 
arrangement  for  the  mode  of  enjoying  Dower,  as  they  think  fit.  (y) 

Thus,  the  heir  may,  on  the  acceptance  of  the  widow,  assign  one  manor 
in  lieu  of  a  third  part  of  each  of  three  manors;(r)  he  may  assign  an  un- 
P  *Qf;q  -i  divided  *third  part  in  common,  in  lieu  of  a  third  part  in 
•-      ~'         -'  severalty. (5) 

And,  in  an  assignment  by  the  heir  or  terre-tenant,  parcel  of  the  thing 
to  which  the  woman  has  right  of  Dower  may  be  assigned  unto  her  in  the 
name  of  Dower,  and  it  is  not  necessary  that  the  third  part  of  the  thing 
unto  which  she  hath  right  of  Dower  should  be  assigned  unto  her,  for  if 
the  fourth  part,  the  fifth  part,  or  the  moiety,  is  assigned  unto  her  in  the 
name  of  Dower  for  all  the  freehold  which  her  husband  had,  and  she 
agrees  thereunto,  it  is  a  valid  assignment.(/) 

So  also  lands  in  Wales  may  be  assigned  unto  a  woman  in  allowance 
of  all  the  freehold   of  her  husband;  and  by  this  assignment  she  shall  be 


(m)  Co.  Litt.  .31.  b.;  F.  N.  B.  149  (N.);  Perk.  sec.  319  (cites  M.  23  E.  3.  130.  M.  13 
H.  3.  Dow.  93);  3  Leon.  271. 

i_n)  Supra,  p.  239. 

(0)  Booth  V.  Lambert,  Styles,  276 ;  Perk.  sec.  414 ;  12  E.  4.  2  ;  but  see  18  H.  6.  27, 
contra. 

(p)  See  Perk,  sec.  332 ;  but  see  Anc.  Entries,  Qua.  Imp.  529  10;  and  Qua.  Imp.  in 
Dow.  1.  contra. 

(9)  See  Stvles,  276,  in  Booth  v.  Lambert ;  12  E.  4.  2  b.  26  Ass.  41.  1. 

(r)   1  Roll.  Ab.  683.  4. 

(s)  Coots  or  Booth  v.  Lambert  (1651,)  9  Vin.  Ab.  682  ;  Styles,  276  ;  Co.  Litt.  32.  b.  n. 
(1);  and  see  also  Rowe  v.  Power,  1  Bos.  and  P.  N.  R.  1;  and  Perk.  sec.  413,  who  makes  a 
qu.TBre  on  the  point. 

(t)  Perk.  sec.  405.  But  it  is  said  that  alt  the  land  of  the  husband  cannot  be  assigned  in 
the  name  of  dower.     lb.  sec.  408. 


OF  ASSIGNMENT  OF  DOWER.  121 

excluded  to  demand  Dower  of  any  other  lands  which  her  husband  had 
within  any  place  in  England. (m) 

On  assignment  by  the  shcrilF,  a  rent  issuing  out  of  the  land  cannot  be 
assigned  in  lieu  of  l)ower  of  the  land,  for  such  assignment  is  againul 
common  right,  and  the  sherilf  cannot  charge  the  land  with  the  rent,  but 
only  he  who  is  owner  of  the  land;(t')  but  such  an  assignment  by  the  heir 
is  good  enough,  if  the  widow  assent.(?/') 

*So  it  is  said,  G  Eliz.  that  in  Dower,  acceptance  of  quar-  j-  •ord,  ^ 
ters  of  corn  during  life  is  a  good  bar,  as  of  acceptance  of  ^  ■' 

rent;  otherwise  of  an  horse,  and  sucii  things  as  do  not  arise  from  the 
land, (a") 

But  an  assignment  of  rent  or  other  thing  in  recompense  of  Dower, 
cannot  have  a  condition  annexed  to  it,  but  such  condition  will  be  merely 
void;  for  the  rent  comes  in  place  of  the  Dower  of  the  land,  and  ought 
to  be  of  the  same  nature,  viz.  absolute. (?/)  And  such  rent  oannot  be  for 
a  less  estate  than  the  life  of  the  dowress.(r) 

Nor  can  lands  or  tenements,  or  rent  issuing  out  of  lands  or  tencmcnta, 
of  which  a  woman  is  not  dowable,  be  assigned  unto  her  in  the  name  of 
her  Dower,  in  allowance  of  other  lands  or  tenements,  whereof  she  is 
dowable. (rt)  The  reason  of  this  is,  that  a  right  to  an  estate  of  freehold 
cannot  be  barred  by  the  acceptance  of  any  collateral  recompense  in 
pais;{b)  and  therefore  such  an  assignment  would  not  conclude  the  wife 
from  claiming  her  Dower  of  the  other  lands,  which  is  what  is  to  be  un- 
derstood by  the  proposition. 

If  Dower  be  assigned  of  the  land,  excepting  the  trees  growing  upon 
the  land,  this  is  a  void  exception;  *and,  if  Dower  be  as-  j-  .jg^  i 
signed  upon  condition,  the  condition  is  void,  for  the  dow-  *- 
ress  is  in  by  her  husband,  and  the  party  making  the  assignment,  which 
merely  ascertains  the  certainty  of  the  parcels,  cannot  qualify  her  estate 
or  deprive  it  of  its  incidcnts.(c) 

II.  What  persons,  in  respect  of  interest  in  the  land,  are  competent  to 
make  a  valid  assignment  of  Dower  in  pais,  namely,  when  it  is  not  as- 
signed by  the  sheriff,  or  commissioners,  upon  suit. 

The  assignment  of  Dower  in  certainty  being  an  act  involving  the 
interests  of  the  persons  entitled  to  the  inheritance,  it  became  requisite 
that  no  one  should  be  legally  comi)ctent  to  assign  Dower,  who  had  a 
less  estate  than  one  of  freehold.  As  no  tenant  of  an  inferior  nature  was 
capable  of  binding  the  rights  of  the  freeholder  in  a  real  action,  and  con- 


(m)  Perk.  sec.  409  (cites  P.  7  E.  3.  9.  Dow.  103;)  Jcnk.  41.  pi.  88.  So  of  land,  m 
Ireland.     Arg.  Cart.  187. 

(v)  22  E.  4,  cited  Noy.  10;  but  see  20  Ass.  41,  roiilra. 

(w)  Jenk.  Cent.  1 .  ca.  17;  1  Roll.  Abr.  683  ;  bro.  Dow.  pi.  01.  And  it  »crm».  .uch  in 
assignment  is  good  even  after  judgment  for  dower,  and  ii  shall  l>e  a  uood  bar  in  o  ncire  fnaua. 
Perk.  sec.  410  (cites  E.  31  E.  3.  Sci.  fa.  99;)  and  sec  Uy.  91.  a. 

(x)   Moor.  48.  [59.  pi.  167.] 

\y)  See  Wenlworth  v.  Wcntworth,  Cro.  Eliz.  452  ;  Noy.  55  ;  and  see  1  And.  288, 

(z)  Hob.  153.  ... 

(a)  Perk.  sec.  407,  410;  Co.  LiU.  34.  /;.  5.34.  I,.;  Dy.  91.  /'■;  Uro.  Dow.  pi.  61:  but  M« 
Harg.  Co.  Lilt.  34.  h.  n.  (9),  that  if  the  licir  assigns  dower  of  laiidx  of  which  the  husband 
was  seised,  but  the  wife  was  not  dowable,  she  is  tenant  in  dower.  Setl  qu. 

(f))  4  Co.  1.  /;.  .  . 

(c)  Colthirs  Iv,  Bejushin,  Plow.  Com.  21;  Law  of  Baron  and  Feme,  p.  105  ;  Lo.  Li«. 
34.6. 


122  PARK  ON  DOWER. 

sequently,  as  judgment  obtained  on  a  writ  of  Dower  brought  against  a 
person  having  merely  a  chattel  interest,  would  be  voidable  by  the  free- 
holder, the  consistency  of  the  law  required  that  such  person  should  not 
bind  the  freeholder  by  assigning  Dower  without  action.  A  person 
having  only  a  chattel  interest  is  not  entrusted  with  the  defence  of  the 
inheritance,  and  the  freeholder  might  possibly  have  had  a  good  bar  to 
allege  to  the  claim  of  Dower.  The  propositions  are  indeed  conversible, 
that  agamst  whomsoever  a  writ  of  Dower  will  lie,  that  person  is  com- 
r  *  e  1  petent  to  make  a  valid  assignment,  or  in  other  words, 
L  '^""  J  whoever  is  ^compellable  by  writ  to  assign  Dower  may  do  it 
without  writ. 

It  will  accordingly  be  found  in  the  books  that  an  assignment  of  Dow- 
er by  a  guardian  in  socage,  a  tenant  by  elegit,  statute  staple,  or  statute 
merchant,  or  a  lessee  for  years,  is  not  good.(^)  An  exception  to  this 
doctrine  existed  formerly  in  the  case  of  a  guardian  in  chivalry,  found- 
ed upon  reasons  which  it  is  no  longer  of  practical,  importance  to  inquire 
into.(e) 

But  an  assignment  made  by  a  disseisor,  abator,  intruder,  or  other  per- 
son having  the  freehold  by  wrong,  may,  and  in  most  cases  will,  be  good, 
and  binding  upon  the  persons  having  right.(/) 

In  inquiring  into  the  competency  of  different  persons  to  make  a 
valid  assignment  of  Dower,  it  is  a  material  circumstance,  and  very  ne- 
cessary to  be  borne  in  mind  in  consulting  the  old  cases,  that  different 
degrees  of  capacity  are  required  for  the  different  modes  of  assigning 
Dower. 

Dower  is  assignable,  as  it  has  been  already  shown,  either  according 
to  common  right,  or  specially,  and  against  common  right.  An  assign- 
ment of  Dower  according  to  common  right,  if  made  by  a  person  pos- 
^fp^-  -i  sessed  of  the  freehold  by  right  or  by  wrong,  is  binding  both 
L  -'  upon  the  wife,  and  upon  all  persons  ^having  interests  in  the 

lands  assigned :(^)  an  assignment  against  common  right  is  binding 
upon  neither  further  than  they  are  agreeing  thereto,  and  therefore  such 
an  assignment,  if  made  by  a  person  having  only  a  particular  or  defeasi- 
ble interest  in  the  inheritance,  though  valid  during  the  continuance  of 
his  interest,  if  accepted  by  the  wife,(A)  is  not  binding  upon  his  success- 
ors, or  other  persons  having  title;  nor  if  made  by  the  heir,  is  it  binding 
upon  persons  having  charges  or  other  interests  in  the  land,  although 
created  subsequent  to  the  attachment  of  the  title  of  Dower.(2)  Thus  if 
a  disseisor,  abator,  or  intruder  assign  a  rent  unto  a  woman  in  allowance 
of  her  Dower  of  the  land,  the  disseisee,  or  he  who  has  right  unto  the 
land,  shall  not  be  bound  by  such  assignment.(/t)     And  if  a  tenant  in  tail 


{(1)  Perk.  sec.  404.  Co.  Litt.  35,  a.  6  Co.  58.  19  Ass.  6S.  A  qusere  is  made  as  to  a 
guardian  in  socage  in  1  Roil.  Abr.  682. 

(e)  See  Co.  Litt.  38,  b.  Vexk.  sec.  403.  9  Co.  17.  6  Co.  58.     Bract.  314. 

(/)  Co.  Litt.  35,  a.  357,  b.     2  Co.  67.     6  Co.  58.     Perk.  sec.  394.      12  Ass.  20. 

(^)  Perk.  sec.  404,  and  see  sec.  426,  that  if  a  disseisor  assign  dower  [according  to  com- 
mon right]  and  the  disseisee  enter  upon  the  tenant  in  dower,  she  may  have  an  assize  against 
him. 

(A)  See  2  Bos.  and  Pul.  N.  R.  33,  in  Rowe  v.  Power. 

(/■)   See  p.  241,  supra. 

{k)  Perk.  sec.  398,  (cites  7  Ass.  41.  E.  10  E.  2.  Dow.  189.)     Jenk.  Cent.  1.  ca.  17. 


OP  ASSIGNMENT  OF  DOWER.  123 


assign  an  undivided  third  part  of  the  lands  in  Dower,  it  is  good  only 
during  the  continuance  of  his  interest.(/) 

On  the  same  principles  an  assignment  by  one  of  several  jointenanta, 
if  according  to  common  right,  is  a  good  assignment,  and  shall 
bind  his  com|)anions;  "butif  against  common  right,  they  shall   I-  ®     J 

not  be  bound  by  \\,{iii)  and  the  law  is  tiie  same  of  an  assignment  by  a 
husband  seised  in  right  of  his  wife.(7i)  For  the  complete  validity  of  an 
assignment  uguiml  common  right,  it  is  necessary  that  there  should  be 
the  agreement  of  all  parties  who  may  be  prejudiced  by  it.  IJut  if  niade 
by  a  person  having  the  fee,  he  is  of  course  competent,  in  regard  of  his 
unlimited  ownership,  to  bind  all  persons  claiming  under  him. 

The  consequences  of  these  distinctions  have  been  already  traced  in 
the  preceding  portion  of  this  chai)tcr. 

On  the  general  i)rinciple  that  whoever  is  compellable  to  assign  Dow- 
er by  writ,  may  assign  Dower  in  pais,  an  assignment  made  by  an  in- 
fant is  good;  for,  as  it  will  be  seen  in  the  following  chapter,  the  parol 
shall  not  demur  for  non-age  in  a  writ  of  Dower.(o) 

It  would  seem  from  one  j)assage,  that  if  Dower  be  assigned  by  a  per- 
son not  legally  competent,  as  by  a  guardian,  the  heir  may  treat  the  wife 
as  a  disseisor,  and  he  may  have  an  assize.  (/;) 

But  it  is  held  that  the  assignment  is  not  merely  void,  but  shall  stand 
good  until  avoided. ((^)  So  also  of  an  assignment  made  by  ,  »oro  1 
a  person  legally  competent  *to  assign  Dower,  but  of  a  thing  L  "  J 
of  which  the  woman  was  not  tlovvable.(r) 

Although  an  assignment  of  Dower  by  a  disseisor,  abator,  &c.  is,  gene- 
rally speaking,  good,  it  is  otherwise  if  it  is  procured  by  the  covin  of 
the  wife;  as  if  she  cause  another  to  disseise  the  tenant,  and  recovers 
Dower  against,  or  has  Dower  assigned  by  him.(.v)  From  the  abhorrence 
of  the  law  to  covin,  it  refuses  to  recognise  a  recovery  obtained  by  it, 
although  upon  a  rightful  title:  and  the  heir  may  treat  her  as  a  disseisor, 
she  having  made  herself  a  party  to  the  disseisin. (/) 

Although  no  estate  is  vested  in  the  dowress  until  the  certainty  of  the 
land  is  ascertained  by  assignment,  yet  as  the  estate,  although  suspended 
in  the  meantime,  does  not  pass  by  the  assignment,  but  the  dowress  is  in, 
in  intendment  of  law,  by  her  husband,  ncillier  livery  nor  writing  is 
essential  to  the  validity  of  an  assignment. (y/)  In  the  very  learned 
reasons  for  the  appeal  in  Rowe  v.  Power,  drawn  up  by  Mr.  Margrave, 
it  was  contended  that  this  was  only  true  as  aj)plicable  to  assignmcnt.s 


(/)  See  Itowe  v.  Power,  2  Bos.  nml  Pul.  N.  U.  II.  But  it  has  lieon  saiJ  that  if  a  tenant 
in  tail  assigns  a  rent  out  of  the  land  in  lieu  of  dower,  thin  shall  bind  his  i^sul^  unlci>ji  it 
amounts  to  more  than  a  third  part.     Per  two  judnes  in  Hicklv  v.  Bickly.      I  .And.  -S8. 

(w)  Perk.  sec.  397,  (cites  E.  7  H.  G.  :}.  1.  Dow.  2.)  'Z  Co.  67.  Co.  Lilt.  34,  i.  35.  o. 
Bridg.  130. 

(m)  Perk.  sec.  399,  (cites  E.  10  E.  2.  4,  139.)  and  see  Hargr.  Co.  Litt.  35,  a.  n.  (2.) 

(o)  y  H.  6.  G,  b. 

{p)  19  Ass.  G8.  Gilb.  Dow.  387.  Such  at  least  seems  to  be  the  inference.  See  also 
Plow.  .'Jl.  54.  F.  N.  B.  148,  note  (a.) 

{q)   Perk.  sec.  403,  and  sec  1  And.  268. 

(r)   PcrU.  sec.  404. 

(s)  18  H.  8.  5.  19  H.  8.  13.  44  E.  3.  4f..  11  E.  4.  2.  lo  E.  4.  2.  7  H.  7.  11.  Plow. 
61,  54.  Perk.  sec.  394,  395.     Jenk.  Cent.  4.  ca.  98. 

\t)   11  E.  4.  2. 

(u)  Co.  Litt.  35.  a.     2  Bos.  and  Pul.  N.  K.  34,  in  Kowc  v.  Power. 


124  PARK  ON  DOWER. 

according  to  common  right,  and  that  even  a  tenant  in  fee  could  not, 
by  mere  agreement  with  a  widow,  and  without  livery,  pass  a  legal  estate 
in  Dower  to  her  by  assigning  an  undivided  third,  that  being  against 
.^  ^  -,  common  *right.  It  was  therefore  contended,  that  an  assign- 
[  2/0  J  j^gj^^.  Qf  j)ower  in  the  form  of  an  undivided  third  by  a 
tenant  in  tail  solely  seised,  and  accompained  with  livery,  was  nothing 
more  or  less  than  a  lease  or  feoffment  for  life  by  tenant  in  tail,  not  war- 
ranted by  the  enabling  statute  of  the  32d  of  Henry  the  eighth.  Tliis 
argument  is  negatively  opposed  by  the  current  of  authorities  in  the  old 
books  assuming  an  assignment  against  common  right  by  parol  to  be 
valid,(y)  and  it  meets  with  but  little  support  from  principle.  The  law 
does  not  suppose  that  because  a  woman  takes  an  assignment  of  Dower 
against  common  right  she  takes  thereby  any  thing  short  of  an  estate  in 
Dower  properly  so  called,  and  if  she  takes  an  estate  in  Dower  she  must 
take  it  as  an  emanation  from  the  estate  of  her  husband,  and  not  as  a  free- 
hold created  de  novo  by  the  heir.  All  the  books  testify  that  if  a  woman 
accepts  an  assignment  of  Dower  by  word  against  common  right,  she  is 
bound  by  it,  and  cannot  afterwards  demand  her  Dower  to  be  assigned  to 
her  in  the  strict  manner.  Now  if  such  assignment  against  common 
right  was  to  be  considered  merely  as  a  g7'ant  by  the  heir  in  satisfaction 
or  allowance  of  her  Dower,  such  grant  could  not  be  a  bar  to  her,  for  the 
right  to  an  estate  of  freehold  cannot  be  barred  by  a  collateral  recompense. 
It  will  indeed  be  found  from  the  books  that  even  a  rent  assigned  in 
*„-,  -,  allowance  of  Dower  of  land  or  *a  capital  messuage  is  good 
V  '  \  without  deed,(tt;)  which  plainly  shows  that  it  is  considered 
as  coming  in  lieu  and  in  the  nature  of  Dower.  And  such  rent  must  be 
pleaded  by  the  word  assignavit,  and  not  dedit.[x) 

If  the  sheriff  assigns  Dower  contrary  to  common  right,  when  it  might 
have  been  assigned  regularly,  it  seems  that  this  is  error  in  the  execution 
and  may  be  taken  advantage  of  by  the  tenant  as  such.(y)  It  is  how- 
ever said  by  Doddridge,  J.  in  another  case,  that  if  the  sheriff  commit  er- 
ror by  assigning  a  larger  part  than  he  ought,  a  writ  of  admeasurement 
lies,  but  not  error,  inasmuch  as  the  judgment  and  award  of  execution  are 
good.(z)  It  is,  however,  very  doubtful  whether  the  writ  of  admeasure- 
ment lies  in  this  instance;  and  the  writer  does  not  believe  that  any  pre- 
cedent for  it  is  to  be  found ;  but  it  is  said  that  if  on  a  recovery  of  the 
third  part  in  Dower  the  sheriff  assigns  a  moiety,  &c.  the  tenant  has 
remedy  against  the  sheriff  by  assize,  or  he  may  have  a  scire  facias  to 
r  *272  1  ^^^^S"  ^^  novo.{a)  In  one  case  it  seems  the  sheriff  *was 
L  -^  committed  for  an  improper  assignment  of  Dower,  as  where 

(v)  It  was  admitted  in  the  reasons  for  the  appeal  that  the  case  of  Coots  v.  Lambert  supra, 
p.  263,  was  an  authority  to  the  contrary,  but  the  plaintiff  in  error  claimed,  if  necessary,  to 
controvert  that  case. 

(-u>)  12H.  4.  176.  7  H.  6.  33.  i.  Jenk.  Cent.  1.  ca.  17.  Hob.  153.  Perk.  sec.  406. 
And  upon  an  assignment  of  part  of  the  lands  in  dower,the  heir  by  parol  may  assign  away 
through  the  other  parts.     White  v.  Robinson,  2  Roll.  Rep.  475. 

(x)  Cro.  Eliz.  4.')2. 

ly)  Styles,  276,  in  Booth  v.  Lambert.  As  to  error  in  the  return,  see  Howard  v.  Mans- 
field, Palm.  264. 

(i)  Palm.  266,  in  Howard  v.  Mansfield. 

(a)  Bro.  Extent,  pi.  13.  F.  N.  B.  138,  note  (b.)  (cites  22  R.  2.  E.'cecution,  16.'5.  21  H. 
7.  29.)  Gilb.  Uses.  388.  The  writ  of  admeasurement,  however,  lay  on  downment  by  the 
king  in  Chancery.  F.  N.  B-  149,  (A.) 


OP  ASSIGNMENT  OP  DOWER.  125 

he  returned  that  he  had  assigned  to  the  demandant,  for  her  Dower  of  a 
house,  the  third  part  of  eacli  chamber,  and  liad  chalked  it  out  for  her.(A) 
In  another  case,  the  sheriff  "was  committed  for  taking  CO/,  to  execute  his 
writ  of  execution,  and  the  court  ordered  that  the  assignment  of  Dower 
being  under  vahie,  sliould  be  amended. (f) 

Itseems  also  that  a  court  of  C(iuity  will  entertain  a  hill  to  he  relieved 
against  a  partial  assignment  of  Dower  hy  the  .«herifl',  and  thai  that  court 
may  direct  a  new  writ  of  seisin  to  the  sheriH",  and  even  order  him  to  di- 
vide the  lands  into  three  parts  and  to  choose  hy  lot,(c/)  In  the  particu- 
lar case  from  which  this  doctrine  is  gleaned,  the  assignment  was  charged 
to  be  fraudulently  done,  and  besides  the  excess  of  value,  it  appeared  that 
the  dowress's  own  father  was  the  only  person  that,  on  behalf  of  the  in- 
fant children,  defended  the  writ  of  Dower,  and  appeared  to  see  the  same 
set  out,  which  was  relied  on  as  looking  like  a  collusion.  The  case  of 
Sneyd  v.  Sneyd(e)  affords  another  instance  of  an  assignment  by  the 
sheriff*  being  set  aside  in  a  court  of  equity  on  a  bill  charging  partiality 
and  excess. 

In  every  case  where  Dower  is  recovered  by  judgment,  the  assignment 
is  at  this  day  made  by  the  sherifr,(/)   unless  the  parties  ,    , 
previously  agree  upon  a  ^division.     In  all  cases  where  it  is  ^  ■* 

set  out  by  agreement,  it  is  certainly  advisable  to  have  a  written  instru- 
ment to  ascertain  the  lands. 

The  course  pursued  by  the  Court  of  Chancery,  on  the  title  of  Dower 
being  establislied  or  admitted,  appears  to  be  to  appoint  a  commission  to 
set  out  the  Dower,  and  to  decree  the  heir  to  assign  accordingly  ;(^)  but 
it  appears  in  one  case  that  it  was  ordered  to  be  allotted  by  the  master, 
and  the  dowress  to  be  let  into  possession.  (A)  In  a  case  where  the  de- 
fendant in  his  answer  said  that  he  had  offered  to  assign  her  Dower  to  the 
plaintiff",  and  to  pay  one  third  of  the  rents  and  profits  from  the  lime  to 
come.  Lord  Loughborough  said  he  should  think  uj)on  that  case,  if  there 
were  any  difficulty,  that  upon  the  view  of  the  answer,  a  commission 
would  hardly  go  to  sot  it  out;  hut  that  it  would  jiroceed  u|)on  the  con- 
fession in  the  answer.  («')  Under  a  decree,  the  dowress  can  of  course 
only  have  an  equitable  title  till  assignment  by  the  heir  in  pursuance  of 
the  (\ccrec.{k) 

Of  the  writ  of  Admeasurement  of  Dower,  a  remedy  now  nearly  obso- 
lete, the  following  account  is  given  by  Chief  Baron  Gilbert. 

"The  writ  of  admeasurement  of  Dower  lieth  where  the  heir,  when 
he  is  witliin  age,  endoweth  the  "wife  of  more  than  siie  ought  ..  ,.,-.  -, 
to  have  Dower  of,  or  if  the  guardian(/)  endoweth  the  wil'e  of  ^  " '  J 
more  than  one  third  part  of  the  land  of  which  she  ought  to  have  Dower, 
then  the  heir  at  full  age  may  sue  this  writ  against  the  wife;  and  thereby 


(b)   Abingdon's  case,  cited  Palm.  265.  (c)  l-onRvjII'H  cmo,  1  Kcb.  743. 

(J)   Hobyv.  Hol)y,  1  Vern.  218.  (e)    1  .\lk.  412. 

(/■)   .\s  to  assignments  (now  obsolete)  by  the  escheu.or,  see  K.  N.  B.  263. 

(^)  Sec  Lucas  V.  Calcraft,  1  Bro.  C.  C.  1:M,  and  JUT  I  or.l  I.ouifhborouRh  in  Mumlt  ». 
Mundy,  2  Ves.  J.  125.  Megolt  v.  Mcgott,  2  Dick.  7<J4.  HuJdicstouo  v.  HudJIwlone,  I  ('li. 
Hep.  38. 

(A)  Goodenough  v.  Goodenough,  H,  1772.  2  Dick.  795. 

(t)   Mumly  V.  Mundy,  2  Ves.  J.  129.  {I:)  See  7  Mod.  43. 

(/)  This  iiiians  guardian  in  chivalry.  The  guardian  in  socage  cannot  uiign  dowtr.  •»«•* 
p.  266,  supra. 

Vol.  XL— 2  M 


126  PARK  ON  DOWER. 

she  shall  be  admeasured,  and  the  surplusage  she  had  in  Dower  shall  be 
restored  to  the  heir:  but  in  such  case  there  shall  not  be  assigned  anew 
any  lands  to  hold  in  Dower,  but  to  take  from  her  so  much  of  the  lands 
as  surpasseth  the  third  part  whereof  she  ought  to  be  endowed;  and  he 
need  not  set  forth  of  whose  assignment  she  holds.  17  Ed.  III.  66.  A 
view  is  not  grantable  on  this  writ.  17  Ed.  III.  67,  cont.  adjudged  18 
Ed.  III.  3.  20.  and  it  seems  that  the  heir  within  age,  shall  [not|  have 
an  admeasurement  of  Dower  of  his  own  assignment.  7  E.  III.  Ad- 
measurement B.  ;(m)  but  if  the  heir  at  full  age  assigns  Dower,  he  shall 
not  have  this  writ  against  his  own  assignment.  6  H.  III.  Admeasure- 
ment 18. 

"  And  if  the  heir  within  age,  before  the  guardian  enters  into  the  land, 
do  assign  to  the  wife  more  land  in  Dower  than  she  ought  to  have,  thea 
the  guardian  shall  have  the  writ  of  admeasurement  against  the  wife,  by 
the  Stat,  of  West.  2,  c.  7,  and  if  the  guardian  brings  the  writ,  and  does 
pursue  it  against  the  wife,  yet  the  heir  at  his  full  age,  by  the  same  statute, 
shall  have  the  writ  of  admeasurem.ent  of  Dower  .ngainst  the  wife."(n) 
P  *o7K  -|  *Every  assignment  of  Dower  by  the  heir,  or  by  the 
'-  -^  sheriff  on  a  recovery   against  the  heir,  implies  a  warranty; 

but  this  vvarranty  is  special,  namely,  that  the  tenant  in  Dower  being  im- 
pleaded by  one  who  has  title  paramount,  shall  vouch,  and  recover  in 
value  not  according  to  that  which  she  hath  lost,  but  a  third  part  of 
the  two  remaining  parts  of  the  land  whereof  she  is  dowable.(o)  And 
if  it  is  but  a  particular  estate  which  is  recovered  against  the  dow- 
ress,  and  which  determines  in  her  life-time,  she  may  re-enter  into  her 
original  Dower,  and  then  it  seems  the  heir  may  enter  into  the  second 
Dower,  for  she  shall   not  have  both. (jw) 

The  books  are  at  variance  whether  this  implied  warranty  arises  only 
in  respect  of  the  privity  between  the  dowress  and  the  heir,  or  extends 
also  to  an  assignment  by  the  alienee  of  the  husband  or  of  the  heir.  In 
one  case  it  is  said  that  a  feme  endowed  by  the  vendee  of  the  baron  may 
vouch  the  vendee,  for  cause  of  her  endowment,  and  the  reversion  in 
him. (5-)  But  the  current  of  authorities  appears  to  be  otherwise.  In 
Bedingfield's  case(r)  it  is  said,  "There  is  a  greater  privity  when  a  wife  is 
endowed  of  the  immediate  estate  which  lier  husband's  heir  has  by  descent, 
r  *Q-p  -1  than  when  she  is  endowed  by  a  *stranger,  or  of  another  es- 
I-  "  -*  tate;  for  if  the  wife  be  endowed  of  the  immediate  estate, 
descended  to  her  husband's  heir,  if  she  be  after  impleaded,  she  shall 
vouch  the  heir,  and  shall  be  newly  endowed  of  other  lands  which  the 
heir  has;  but  if  the  wife  be  endowed  by  the  husband's  or  heir's  alienee, 
if  she  shall  be  impleaded,  she  shall  not  vouch  the  alienee  to  be  newly 
endowed;  and  that  is  the  reason  that  when  a  woman  brings  a  writ  or 
Dower  against  the  alienee  of  the  husband,  &c.  and  he  vouches  the  heir, 


(m)  Quaere  7  Ed.  2.  Admeasurement  13. 

(n)  Glib.  Uses,  379,  where  see  more  of  this  writ  and  of  its  form  and  the  process  thereon, 
and  also  F.  N.  B.  148. 

(0)  Bro.  Dow.  pi.  79,  (cites  M.  5.  E.  3.  and  Fitz.  Vouch.  249.)  Co.  Litt.  384,  a.  (cites 
4  E.  3,  36.  33  E.  3.  Cont.  de  Vouch.  122.  43  Ass.  32.  50  E.  3.  7.)  F.  N.  B.  149,  (M.) 
4  Co.  122.  Perk.  sec.  419  ;  but  see  9  Co.  18,  where  it  is  said  that  she  shall  be  newly  en- 
dowed of  other  lands  which  the  heir  has,  generally. 

(p)   Bro.  Dow.  pi.  79,  (cites  ut  supra.) 

(y)  Roll.  Abr.  743.  (r)  9  Co.  18. 


OF  ASSIGNMENT  OF  DOWER.  127 

the  demandant  may  witness  that  the  heir  has  lands  descended  to  him  in 
the  same  count>^,  (for  thi  orip;inal  duth  not  extend  to  another  county,) 
and  pray  that  she  may  he  endowed  of  his  estate,  and  that  is  for  the  bene- 
fit of  her  voucher  to  he  newly  enihjwed.  Vide  in  4  K.  III.  36,  b.  and 
6  E.  III.  1 1,  a,  h.  The  tenant  in  a  writ  of  Dower  vouched  the  heir  of 
the  husband,  and  the  demandant  testified  tliat  he  by  tiescent,  A:c.  in 
the  same  county;  and  judgment  was  ^iven  a^aifi.st  the  heir  if  he  had, 
and  if  not  against  the  lenant.(5)  In  G  E.  III.  20,  b.  the  wife  of  a  stran- 
ger brought  a  writ  of  Dower,  and  the  tenant  vouched  the  heir,(/)  &c.  the 
demandant  shall  not  recover  against  the  heir,  because  there  wantji  privity. 
In  18  E.  III.  30,  b.  in  Dower,  the  tenant  vouched,  and  the  vouchee 
vouched  the  heir  of  the  husbanil  of  the  demandant,  the  demandant  testi- 
fied that  the  heir  had  assets  by  descent  in  the  same  county,  the  demand- 
ant shall  not  recover  against  the  heir,  but  against  the  tenant  ,  .q,-  -, 
only,  for  there  is  *nol  iinmediate  j)rivily  betwixt  the  de-  t  "  J 
mandant  and  the  heir,  for  the  demandant  sliall  recover  against  the  heir 
only  when  the  tenant  in  demesne  vouches  him.  Vide  HcgisL  Judic. 
15,  16  E.  III.  Dow.  56.  3  El.  Dy.  202." 

It  seems,  however,  that  if  a  woman   is  endowed  by  a  disseisor,  she 
shall  have  the  warranty. (?/) 

It  has  been  already  oi)servcd  that  the  edect  of  an  assignment  of  Dow- 
er is  to  discharge  the  remaining  lands  from  the  title  of  Dower,  except 
so  far  as  there  may  be  a  lien  upon  them  by  reason  of  the  warranty.  IJut 
it  has  been  doubted  whether  if  there  be  three  or  four  several  fcofTees  of 
land  of  which  a  woman  has  right  to  have  Dower,  and  one  of  them,  by 
agreement  with  her,  assigns  parcel  of  his  land  unto  her  in  allowance  of 
ah  the  freehold  which  belonged  unto  her  husband,  whether  this  assign- 
ment shall  discharge  the  other  feotlees  against  the  dowress.  It  is  sup- 
posed by  Perkins  that  it  shall;  "  but  some  (he  adds)  have  said  tin-  con- 
trary,(z')  for  they  say  that  they  cannot  j)lead  this  matter  against  the  wo- 
man in  several  writs  of  Dower  brought  by  her  against  them,  tameti 
quxre.  And  the  feofiec  who  made  assignment  cannot  come  into  court 
and  plead  this  matter  in  actions  brought  against  the  other  feoflces,  be- 
cause he  is  a  stranger  unto  those  actions,  and  there  is  not  any  means  to 
bring  him  into  court."(?^») 

"  If,  however,  a  man  seised  of  two  acres  in  fee  "takes  wife,  _  mo-a  i 
and  enfeoll's  a  stranger  of  one  of  the  acres  with  warranty,  and  '-  •  '  J 
dies,  and /(o/A  aci'esare  ino/iecoiinli/,  und  the  heir  doth  emlowhisniother 
of  ids  acre  in  allowance  of  all  her  Dower  in  both  acres,  it  is  a  good  :>-•>  gn- 
ment;  for  if  the  feotfee  had  been  impleaded  by  the  woman  in  a  writ  of 
Dower,  he  might  have  vouched  the  heir,  and  the  demandant  shall  re- 
cover against  the  heir  conditionally. (.r)  And  if  the  heir  leases  for  life 
unto  a  stranger  parcel  of  the  laml  which  he  hatli  by  descent  from  his  fa- 
ther, and  doth  assign  unto  his  mother  parcel  of  the  laml  which  he  hath 
in  possession  in  allowance  of  all  her  Dower,  as  well  for  the  land  leased 
as  for  the   land  which   rcmainelh   in   his  possession,  the  assignment  is 


(s)  2  KoU.  Abr.  751.  Dy.  202,  pi.  71.   Winch.  81,  8S.  Hull.  71,  72. 

(/)  Quivrp,  what  heir? 

(u)  V.  N.  H.  M'J,  note,  (cites  7  E.  3.  7,  21  E.  3.  48,  10  E.  3.     Quid  juri.  41.) 

(r)   See  Co.  Li.t.  3.^  a.  («•)   Perk,  •ec,  402  (cite.  3  E.  3.  Dow.  76.) 

(x)  Perk.  sec.  400,  (cites  M.  3  H.  6.  17.)     Moor  25,  26.  Co.  LitU  35,  a. 


128  PARK  ON  DOWER. 

good,  and  yet,  if  the  woman  implead  the  lessee  by  a  writ  of  Dower,  and 
he  vouch  his  lessor,  the  wife  shall  not  have  judgment  to  recover  against 
the  heir,  because  he  is  not  bound  unto  the  warranty  by  his  father,  who 
was  husband  to  the  woman.  Quaere  if  in  such  case  the  lessee  vouch  the 
heir  generally,  and  the  heir  enter  generally  into  the  warranty,  then  it 
seems  that  judgment  shall  be  given  for  the  demandant  against  the  vouchee 
conditionally. "(y) 

It  should  be  noticed  as  a  point  of  possible  occurrence,  that  where 
the  wife  recovers  Dower,  by  writ,  against  a  vouchee  conditionally, [z) 
the  lands  of  the  tenant  are  not  absolutely  discharged  from  the  title  of 
*o7o    1  Dower,  but  may  eventually  be  liable,  and  that  *the   lien 
•-  J  of  tbe  judgment  will  follow  the  lands  in  the  hands  of  an 

alienee.  As  in  the  following  case:  "If  a  man  seised  of  two  acres  of 
land  in  one  county  take  a  wife,  and  enfeoffeth  a  stranger  of  one  of  the 
two  acres  with  a  warranty,  and  hath  issue  and  dieth,  and  his  issue  en- 
tereth  into  the  other  acre,  and  the  wife  brings  a  writ  of  Dower  against 
the  feoffee,  and  he  vouch  the  issue,  &c.,  who  loseth  by  default,  and  the 
wife  hath  judgment  conditional,  viz.  to  recover  against  the  vouchee,  if 
he,  &c.  and  the  demandant  sueth  execution  accordingly,  and  she  is  put 
in  execution  of  land  which  the  vouchee  hath  by  descent  in  the  same 
county  where  the  Dower  is  brought  as  heir  to  her  husband,  of  which 
land  she  is  dowable,  and  tenant  holdeth  in  peace,  and  the  vouchee  is 
restored  to  the  land  which  the  wife  recovered  by  a  writ  of  deceit:  in 
this  case  the  wife  shall  have  a  scire  facias  against  the  feoffee  who  was 
tenant  to  the  writ  of  Dower;  and,  notwithstanding  that  the  tenant  hath 
enfeoffed  a  stranger  of  the  same  land  before  the  scire  facias  brought 
against  him,  yet  his  feoffee  shall  be  bounden  by  the  judgment  given  in 
the  writ  of  Dower,  because  that  the  writ  of  Dower  was  given  of  the 
land  conditionally,  &c."(«) 

It  is  also  said,  that  if  a  woman  having  a  title  of  Dower  marries  a 
second  husband,  and  the  issue  of  the  first  husband  assigns  the  third  part 
of  the  lands  to  his  mother  by  the  agreement  of  the  husband,  for  her 
r  *o9i,r\  ^  I^ower,  in  allowance  of  all  the  freehold  which  *his  father 
L  "  -'  was  seised  of;  after  the  death  of  the  second  husband,  she 
may  refuse  it,  and  be  new  endowed  according  to  the  value  of  the  whole 
land  which  was  in  the  possession  of  her  husband  during  the  coverture.(6) 
But  it  would  have  been  otherwise  if  she  had  been  endowed  by  the  sheriff 
upon  writ  of  Dower  brought  by  her  and  her  husband. (c) 

We  have  already  seen  that,  in  consequence  of  the  implied  warranty, 
if  the  particular  lands  which  are  assigned  to  the  wife  in  Dower  by  the 
heir  are  recovered  against  her  by  lawful  title,  her  title  of  Dower  on  the 
remaining  lands  revives,  and  she  is  entitled  to  be  new  endowed  of  one 
third  of  those  lands,  although  sold  by  the  heir  during  the  interval. (^) 
It  would  therefore  seem  that  where  a  person  selling  lands  relies  upon 
an  assignment  of  Dower  of  other  lands,  as  discharging  the  lands  sold 
from  a  title  of  Dower,  and  the  lands  assigned  are  held  under  a  different 
title  from  those  sold,  the  purchaser  ought  to  be  satisfied  of  the  goodness 


{y)  Perk.  sec.  401.  (i)  See  chap.  13,  infra. 

(a)  Perk.  sec.  421,  (cites  43  Ass.  pi.  32  M.  8  E.  2.  Voucher  l.o7.  M.  3  E.  3.  50.) 

(b)  Perk.  sec.  422,  (cites  H.  33  E.  1.    Dow.  177,  2  Inst.  309.)  Jenk.  Cent.  2.  ca.  56. 

(c)  Ibid.  ((/)  Perk.  sec.  418,  419,  and  420, 


OF  ASSIGNMENT  OP  DOWER.  129 

of  the  title  to  the  lands  assij»;ned  as  well  as  to  those  !»old.  The  prtctice, 
however,  should  tin;  point  arise,  w(juld  |)rol)al)ly  l)e  cofiaidcrcil  otIierwi.M;, 
governed  by  tiiat  with  regard  to  the  bar  by  jointures,  the  titles  to  which 
are  never  required. (e) 

*In  the  case  of  (irigbyv.  Cox,(y*)  part  of  the  plaintiff's  bill  _     ,  . 

appears  to  have  been  framed  upon  an  id(;a  that  a  jjurcha.ser  '■  J 

of  part  of  an  estate  which  is  sid)jeft  to  Dower  has  an  equity  to  have  the 
Dower  turned  upon  tiie  part  remaining  unsold,  in  discharge  of  the  part 
purchased.  In  that  case,  the  estate  had  been  settled,  on  the  marriage  of 
the  defendant  and  his  wife,  subject  to  the  Dower  of  the  mother,  to  the 
separate  use  of  the  wife,  who  ajjpointed  part  to  the  plaintiff.  He  fdcd 
his  bill  to  have  the  effect  of  this  l)argain,  and  also  praying  that  he  might 
he  decreed  to  receive  the  rents  and  profits  of  this  part  of  the  estate  free 
from  the  deduction  of  the  motiier's  Dower.  It  does  notapj)ear  from  the 
report  that  the  mother  was  a  party  of  the  bill.  'I'lie  observations  of 
Lord  Ilardwicke  on  this  part  of  the  prayer  of  the  hill  are  scarcely 
intelligible,  and  probably  depend  upon  specialties  of  the  case  which  the 
report  does  not  dcvelope.  *♦  As  to  the  exoneration  of  this  part  of  the 
lands  from  tlie  mother's  Dower  (he  remarkeil)  by  turning  it  on  the  other 
part  of  the  estate,  which  still  is  settled  to  the  sej)arate  use  of  the  wife, 
that  depends  on  the  appointment  of  the  wife,  whether  she  was  bound 
by  that  appointment  to  do  so;  for  as  to  tlie  covenant  by  the  husband 
that  it  is  free  from  Dower,  that  will  not  allect  the  wile;  nor  has  plaintiff 
a  title  to  that  decree  against  her:  but  has  a  remedy  against  the  husband. 
The  power  of  the  wife  was  under  this  settlement,  which  is  made  subject 
to  the  Dower,  she  being  to  receive  the  rents  and  profits  to  her  separate 
use,  over  and  above  the  Dower,  which  *ran  over  the  whole.  ^  .^^^  , 
Then  if  the  wife  made  an  appointment,  it  was  only  over  and  ^ 
above  the  Dower;  the  plaintiff  then  must  rely  on  that  covenant  to 
indemnify  and  make  him  satisfaction." 

In  cases  where  the  writ  of  Dower  is  brought  against  several  purchasers, 
it  seems  that  the  court  of  Common  Pleas  will  itself  order  that  the  sheriff 
shall  charge  them  all  proportionally,  though  otherwise  he  might  have 
charged  all  out  of  one  party,  and  the  parly  could  have  no  reniedy  at 
law.  (A') 


•CHAPTER  XIV.  [    '283    ] 

Of  the  REMEDIES  >r  the  recovery  of  Dowr.n  at  law. 

A  DowRESS  having  no  right  of  entry  till  her  Dower  is  assigned,  cannot. 
if  an  assignment  is  refused^  maintain  a  possessory  action.  The  legal 
remedv  to  enforce  an  assignment  of  Dower  is  by  a  writ  of  Dower  uudc 
nihil  hahet,  or  by  a  writ  of  right  of  Dower,  brought  :.i;:unst  the  tenant 
of  the  freehold;  upon  which,  it"  she  obtains  judgment,  Dower  is  assigned 

(e)  The  student  is  advised  to  consult  the  disnission  on  this  •ul.jcrt  in  Mr.  SuKJ.-n'i  Treat, 
on  Vend,  and  Purch.  p.  304,  5th  edit,  and  see  t^impson  v.  Gutterulco,  1  .Madd.  009. 
(/)   1  Ves.  S.  517.  is)  Anon.  Frccm.  C'.',. 


130  PARK  ON  DOWKR. 

by  the  sheriff  on  the  land;  and  she  may  then  proceed  to  recover  posses- 
sion by  ejectment. 

lu  consequence  of  the  jurisdiction  which  courts  of  equity  have  assumed, 
in  modern  times,  of  setting  out  Dower,  the  prosecution  of  a  writ  of 
Dower  has  become  a  matter  of  some  rarity:  Dower,  however,  being  a 
legal  right,  can  only  be  regularly  tried  at  law;  and  therefore,  whenever 
the  title  of  the  Dowress  is  disputed,  upon  a  bill  in  equity  for  a  commis- 
sion to  set  out  Dower,  the  plaintiff  is  sent  to  law  to  try  her  right,  which 
can  only  be  done  by  a  writ  of  Dower;  this  writ  therefore  cannot  be  con- 
sidered as  obsolete. 

The  writ  uniformly  adopted  when  the  circumstances  will  allow  of 
it,  is  the  writ  of  Dower,  unde  nihil  habet,{a)  which  is  a  writ  of  right 
^  /I  1  "^  ^^^  nature,  *and  lies  in  every  case  where  no  Dower  has 
[  284  J  ^^^^  already  assigned  by  the  tenant  to  the  writ,  within  the 
vill  wherein  the  lands  lay  of  which  Dower  is  demanded;  but  if  she  has 
received  part  of  her  Dower  of  the  tenant  himself,  in  the  same  vill,  the 
proper  remedy  is  the  writ  of  right  of  Dower,  which  is  a  more  general 
writ,  extending  either  to  a  part  or  to  the  whole;  and  is,  with  respect  to 
the  claim  of  Dower,  of  the  same  nature  and  efficacy  as  the  grand  writ  of 
right,  respecting  a  claim  to  an  estate  in  fee  simple.(6) 

Before  the  abolition  of  wardships,  if  the  lands  were  held  of  the  king 
in  capite,  and  the  heir  was  in  ward,  the  only  mode  by  which  the  widow 
could  obtain  an  assignment  of  Dower  was  by  suing  the  king,  as  guardian, 
in  the  Chancery,  or,  as  is  said  by  some,  in  the  Court  of  Wards.(c)  The 
whole  of  the  proceedings  in  this  case  (now  obsolete)  will  be  found  in 
Fitzherbert's  Natura  Brevium,  263,  and  Gilbert's  Tract  on  Dower,  412. 
^  *To  collect  all  the  points  upon  the  writs  of  Dower  would 

[      285    J  g^^gn  ^i^ig  volume  to  an  immoderate  bulk,  and   at  this  day 
would  scarcely  be  considered  as  an  accomplishment  of  any  value.     The 
following  outline,  with  the  help  of  the  references,  will  probably  be  suf- 
ficient for  most  purposes  of  practical  research. 
1.  Against  whom  this  writ  will  lie. 

It  has  been  already  stated  that  at  this  day  the  writ  of  Dower  lies 
against  no  one  but  the  tenant  of  the  freehold. (fi?)  Therefore  it  cannot 
be  brought  against  the  guardian  in  socage,(e)  or  any  person  who  has  but 
a  chattel  interest,  as  a  tenant  by  elegit,  tenant  for  years,(/)  &c.  And  it 
seems  that  although  judgment  and  execution  should  be  bad  against  such 
a  tenant,  yet  he  may  afterwards  enter  upon  the  demandant. (^)  And 
the  tenant  of  the  freehold,  before  judgment,  shall  be  received;  and  upon 

(o)  See  the  form  of  this  writ  and  the  process  thereon  in  Fitz.  N.  B.  147.  (E.)  Booth  Re. 
Act.  166.  Rast.  Ent.  227.  b.  Reg.  170.  a.  Gilb.  Dow.  37.5.  2  Saund.  42.  m.  where  the 
whole  course  of  the  process  upon  a  writ  of  dower  is  detailed  with  great  accuracy  in  a  note 
by  the  learned  editor.  There  is  a  special  writ  of  dower  of  lands  or  tenements  in  London, 
directed  to  the  mayor  and  sheriffs.  See  Fitzh.  N.  B.  148.  (Gilb.  Dow.  378.  and  see  1  Vent. 
267.     Rayra.  233.     Co.  Ent.  176.  b. 

(6)  Gilb.  Dow.  371.  367.  F.  N.  B.  18.  (C.)  Kel.  128.  Booth  Re.  Act.  166.  118.  (cites 
Registr.  3.)  St.  Westm.  1.  c.  49.  2  Inst.  261.  This  writ  lies  for  dower  of  the  profits  of 
an  office.  Fitz.  N.  B.  8.  H.  For  the  form  of  the  writ  and  process,  see  Booth  Re.  Act.  118. 
Reg.  3.  a.  Rast.  Ent.  234.  Fitz.  N.  B.  7.  (E.)  Gilb.  Dow.  357. 

(c)  Smith  V.  Angel,  2  Ravm.  78.5.  and  7  Mod.  43.  Jenk.  Cent.  1  ca.  17.  Dy.  228.  b. 
263.  pi.  36.  2  Inst.  270.  Keilw.  133.  b. 

(d)  Supra,  p.  265.  (e)   29  Ass.  68.     Bro.  Dow.  pi.  63. 
(/)  9  Co.  17.                                                   Iff)    Mitchell  v.  Hyde,  1  Leon.  92. 


OF  THE   WRIT  OF   DOWER.  131 

default  of  the  tenant  to  pray  to  he  received,  yet  he  may  falsify  after 
judgment.  (A)  So  also  tlie  revc  r.sioiicr  may  he  received  to  save  his  title, 
where  the  writ  is  hrought  against  the  tenant  for  life.(i) 

II.   As  to  the  process  in  this  action. 

The  process  is  hy  summons  to  aj)pear,  and  if  the  tenant  neglects,  or 
does  not  cast  an  essoign,  then  hy  grand  cape  and  petit  cajMi  in  the  Com- 
mon Pleas.(A')  *0n  the  return'of  the  writ  of  summons,  the  ,  ,^ 
tenant's  attorney  may  enter  appearance  with  the  fdazer,  and  •-  *  J 
pray  view,  &c.  Then  passes  in  .some  cases  a  writ  of  view,  whereby  thu 
sherifl"  is  to  show  the  tenant's  land,  and  on  return  the  tenant's  attorney 
takes  a  declaration,  and  generally  jileads  tie  unr/ue  seisie,  &.c.(/) 

If  the  tenant  neglects  to  appear  on  the  return  of  the  grand  cape,  the 
demandant  is  strictly  entitled  to  judgment  of  seisin  and  to  an  award  of  a 
writ  of  in{[uiry  of  damages;  hut  if  the  tenant  appear  on  the  return  of 
the  grand  cape,  the  demandant,  instead  of  insisting  on  final  judgment 
against  the  tenant  for  his  default  to  the  summons,  may  waive  the  default 
and  take  an  appearance  upon  the  grand  cape,  and  so  in  a  petit  cape.(m) 

The  jury  process  in  this  action  is  the  same  as  in  personal  actions  in 
the  Common  Pleas,  viz.  a  venire /acids,  and  a  hciheas  corpora  Jura- 
torian.{n)  And  hy  stat.  24  Ceo.  II.  c.  4S,  sec.  l,  it  is  enacted,  that  in 
all  writs  of  Dower  laidc  )ti/ii/  /uibet,  after  issue  joined,  it  shall  not  be 
needful  or  requisite  to  have  above  fifteen  days  between  the  teste  and 
return  of  the  venire  facias,  or  any  other  process  to  be  sued  oul  for  the 
trial  of  the  said  issue,  but  that  the  writ  of  fe;j/reyi/c/«* 'and  ,  nnc.^  i 
other   process  after  issue  joined  until  judgment  he  given,  ^  -' 

having  only  fifteen  days  between  the  teste  and  return   thereof,  shall  be 
good  ami  ed'ectual  in  law,  as  is  used  in  personal  actions." 

III.   With  regard  to  the  pleadings. 

To  this  writ  the  tenant  may  plead  in  abatement  of  the  demand,  as 

Non  tenure  either  of  the  whole  or  part,  (o) 

That  he  holds  jointly  with  A.  not  named. (/>) 

And  in  these  cases,  as  the  writ  of  Dower  nnile  nihil  iKihct,  is  a  writ 
cle  libera  tcneinento,  generally,  and  not,  like  a  pnccipc  quod  reddat,  a 
demand  of  a  certain  number  of  acres,  if  the  plea  is  only  as  to  part,  the 
demandant  may  abridge  or  narrow  her  demand  to  the  resiihie,(y)  and 
the  writ  will  remain  good,  for  the  abridgment  does  not  falsify  it,  a.t  it 
would  the  pru'ci/jc  (/u(f(l  rcddat.[r)  Aiul  the  demandant  may  abridge 
her  demand  although  the  tenant  does  not  plead  in  abatement. (.v)  Hut  it 
is  said  that  if  the  writ  is  dc  libera  tc7iementu  in  I),  and  S.  there  can  be 
no  abridgment  as  to  all  the  lands  in  either  of  the  vills  named. (/) 


(/()  Anon.  rJrownl.  and  Goldsb.  126.  (i)  Ibid. 

[h)  F.  N.  B.  1  IS.  (U.)  Fit/..  Dow.  48.  2  Saund.  43.  n.  (I.)  A«to  the  cwoign  ia  dower, 
sec  9  Co.  16.      Com.  Dip.  Fleader.  (2  V.  1.) 

(/)  Bull.  N.  W  liy  Brid^inan.  1 1'J.  n.  2  Saund.  M.  n.  (.1. )  (1.)  where  it  it  doubt«d  whe- 
ther the  view  would  be  allowed.     Com.  Dig.  I'leadcr.     (2  V.  3.) 

(wi)   Staple  V.  Haydcn,  1  Salk.  216.    6  Mod.  ■».  2  Saund.  -l-'J.  n.  (1.) 

(n)  'See  Dennis  v.  Uennia,  2  Saund.  a:JO.     Kobiim  v.  Crutchley,  2  Wil«.  121. 

(o)  Kast.  Ent.  2:n.  a.  b.  2:J2.  b.  1  Bro.  Ent.  20;').  Clifi.  MYi.  pi.  II.  Kob.  Ent.  246. 
1  Lutw.  716,  717.  And  see  Mitchell  v.  Hyde,  1  Leon.  92,  and  2  Saund.  II.  n.  (I.)  Moor, 
80.   Dal.  100. 

C/;)   Kast.  Knt.  22.'j.  b.  (v)   Lev.  Enl.  76.    3  Lc».  GS.    Hernc,  342. 

(r)    14  H.  6.  3,  4.  Bro.  'Abridgment,'  pi.  l'-'. 

(«)  See  2  Saund.  339.  (/)  3  Lev.  C8. 


132  PARK  ON  DOWER. 

Ancient  demesne.(w) 

[    *2SS    ]     *That  the  demandant  married  pending  the  writ.(«) 

The  pleas  in  bar  which  the  tenant  may  use  in  this  action  are  either 
such  as  deny  the  right  of  the  demandant  to  any  Dower  at  all,  or  such  as 
admit  her  title,  but  allege  some  reason  why  she  should  not  be  permitted 
to  recover  her  Dower. 

Of  the  former  kind  are  the  pleas  of 

Ne  iinques  seisie  que  Dower,  which  alleges  that  the  demandant's 
husband  was  never  seised  of  such  an  estate  in  the  lands  that  she  can 
have  any  legal  claim  to  be  endowed  of  i\\G.m.[w)  In  what  cases  the  ten- 
ant may  support  this  plea  will  be  found  from  a  reference  to  the  third 
and  fourth  chapters  of  this  work. 

Ne  unques  accouple  in  loyal  malrimonie. 

By  this  plea  the  tenant  controverts  the  validity  of  the  demandant's 
marriage  with  the  person  of  whose  lands  she  claims  Dower.(a?) 

To  this  plea  the  demandant  must  reply  that  she  was  married  at  B.  in 
such  a  diocese,  and  a  writ  shall  be  sent  to  the  bishop  of  that  diocese  re- 
quiring him  to  certify  the  fact  to  the  court.(y) 

^  1       *And  if  the  court  in  which  the  demand  of  Dower  is  made 

L  -■  is  an  inferior  jurisdiction,  which  cannot  write  to  the  bishop, 

as  if  the  action  be  brought  in  the  Hustings  Court  of  London,  or  any 
other  corporation,  the  record  must  be  removed,  to  have  it  tried,  to  a 
superior  court  which  can  write  to  the  bishop,  and  upon  return  of  the 
bishop's  certificate  the  record  is  to  be  remanded,  as  in  a  foreign  vouch- 
er.(r) 

But  if  the  marriage  was  celebrated  in  Scotland,  where  there  is  no 
episcopal  establishment,  the  fact  must  of  necessity  be  tried  by  a  jury, 
and  therefore  the  replication  should  conclude  to  the  country,  and  the 
issue  will  be  tried  in  the  county  where  the  venue  is  laid. (a) 

But  in  any  other  case  than  that  of  a  marriage  in  Scotland  or  some 
foreign  country,  it  seems  that  a  replication  to  the  plea  of  ne  unques  ac- 
couple:. concluding  to  the  country  is  bad,  for  it  goes  to  oust  the  bishop  of 
his  jurisdiction. (6)  Neither  can  the  demandant  reply  a  sentence  in  the 
ecclesiastical  court,  declaring  the  marriage  valid,  for  that  is  only  matter 
of  evidence,  and  no  estoppel;  and  the  bishop  is  the  proper  judge  whe- 
ther, as  evidence,  it  is  conclusive  on  him.(c)  But  if  the  bishop  has  al- 
r  *2Qn  1  ''^''^^y  certified  the  marriage  to  the  court,  that  certificate  may 
L  -^   be  *replied  by  the  demandant,  and  shall  be  a  good  estoppel 


(u)   1  R.  A,  322.  (E.)  pi.  2,  Rob.  Ent.  250.  Ash.  Ent.  297. 

(f)   Co.  Ent.  173,  b. 

(w)  See  the  form  of  this  plea  in  Rast.  Ent.  2?0,  a.  Co.  Ent.  176,  a.  Heme.  340.  Rob. 
Ent.  297.  1  Bro.  Ent.  203.  Clift.  303.  pi.  12.  2  Wils.  118.  In  what  cases  the  tenant 
must  plead  the  special  matter,  and  notv'Ve  unques  seisie.  See  p.  145,  154,  supra. 

(a-)   Co.  Ent.  180,  a. 

(.y)  Co.  Ent.  180,  a.  181,  a.  Dy.  313,  b.  36S,  b.  1  Leon.  53,  54.  Rast.  Ent.  228,  b. 
Robins  v.  Crutchley,  2  Wils.  122,  125,  127.  2  .Tones  38.  As  to  what  shall  be  a  good  certi- 
ficate by  the  bishop,  and  that  he  must  return  the  fact  and  not  the  evidence.  See  2  Roll.  591, 
592.  Dy.  30.%  i.  306.  6.  313,368,9.  Wickham  v.  Enfield,  Cro.  Car.  351.  Easterby  v. 
Easterby,  Harnes,  1.  2d  Towns.  ,Judg.  95,  96.  9  Co.  20,  a.  Jenk-  p.  44. 

(z)  Booth,  Re.  Act.  167.  Co.  Litt.  134,  a.  Co.  Ent.  180,  b. 

(a)  Ilderton  v.  Ilderton,  2  H.  Bl.  145. 

(b)  2  Wils.  128.  (c)  Robins  V.  Crutchley,  2  Wils.  122,  127. 


OF  THE  wniT  OF  DOWER,  133 

to  all  the  world,  for  to  award  a  second  writ  to  the  bisliop  would  be  to 
try  the  matter  twicc.(</) 

It  follows  from  what  has  been  already  observed  that  the  tenant  can- 
not plead  bigamy  as  a  bar  to  the  demand,  but  must  avail  himself  of  it  on 
the  general  issue  of  iie  iinc/ties  accoitpll.^e)  The  jiroper  place  to  pro- 
duce all  evidence  tending  to  invalidate  or  substantiate  the  marriage  will 
be  in  the  bishop's  court,  when  the  writ  iVom  the  temporal  court  arrives 
there. 

The  inquisition  taken  before  the  bishop  is  said  to  be  after  tliis  manner. 
"  The  king  first  sends  his  writ  to  the  bishop  to  make  iiupiiry,  fur  the 
ecclesiastical  judge,  before  he  hath  received  the  king's  writ,  may  not  of 
himself  inquire  of  the  lawfulness  of  the  matrimony,  but  after  such  time 
as  he  hath  received  the  said  writ  to  make  the  incpiirv,  he  must  not  sur- 
cease for  any  appeal  or  inhibition, (7)  but  must  proceed  until  he  hath 
certified  the  king's  court  thereof;  and  then,  when  the  bishop  hath  re- 
ceived the  king's  writ,  he  doth  give  notice  thereof  unto  the  party  who 
took  exception  to  the  matrimony  at  his  dwelling-house,  if  he  hath  any 
within  the  diocese,  to  speak  at  a  day  pcrlixed  by  him  against  the  matri- 
mony if  he  will;  and  after  such  notice  given,  whether  the  ^  •ooi  1 
party  come  or  not,  the  witnesses  of  the  demandant  'to  prove  ^ 
the  legality  of  the  marriage  are  taken,  and  admitted  by  the  bishop,  if  no 
sufficient  exception  be  taken  to  the  witnesses.  After  the  depositions 
taken,  they  are  published,  and  certified  into  the  king's  court  where  the 
issue  was  joined,  by  letters  under  the  seal  of  the  bishop  importing  that 
in  pursuance  of  the  said  writ  he  hath  made  due  inquiry,  according  to 
the  ecclesiastical  laws,  into  the  matters  therein  contained,  and  that  he 
hath  found  by  lawful  proofs  and  other  canonical  recjuisites  in  that  behalf, 
that  such  person  (as  the  case  shall  be)  was  or  was  not  accoupled  in  law- 
ful matrimony.  For  he  must  certify  the  point  in  issue  generally,  and 
not  make  a  special  verdict  of  it,  or  express  the  manner  of  the  marriage 
at  large.  And  after  such  certificate  made  there  shall  be  no  appeal,  but 
the  same  certificate  shall  be  a  bar  and  conclude  all  parties  for  ever.  And 
after  such  certificate,  and  re-summons  of  the  tenant  in  the  king's  tem- 
poral court,  judgment  shall  be  given  for  the  jilaintitl. "(,§') 

The  tenant  may  also  plead  that  the  demandant  eloped  from  her  hus- 
band, and  lived  with  another  person  in  adultery  during  the  coverture. (A) 
To  which  the  demandant  replies,  that  siie  did  not  elope.(») 
Or  that  she  was  afterwards  reconciled  to  her  husband. (A*) 
*The  tenant  may  also  plead  a  divorce  a  vinculo  inatri-  ^    .ggo     "I 
monii.{l) 

Or  he  may  plead  a  jointure  made  by  the  demandant's  husband  on  her 
before  marriage. (m) 


((/)  2  Wils.  128,  129,  and  see  the  point  so  ilelcrmincd,  as  to  BatUrdy,  Bro.  Eilopp«l,  pi. 
68,  and  as  to  profession,  FitzU.  Abr.  I'sloppcl,  pi.  282. 

(e)    Bro.  Dow.  pi.  54,  (cites  3'J  E.  3.   15.) 

(/)  See  Bro.  Certificate  d'Evesquc,  pi.  12.  Dav.  53,  a.  b. 

(o.)   Hughes,  993. 

(A)  Rast.  Ent.  230,  a.  1  Bro.  Ent.  204.  2  Bro.  Ent  109.  Hob.  Ent  260.  Co.  Litt  32. 
Dy.  107,  a. 

(i)  Rast.  Ent.  230,  a.  2  Bro.  Ent  109.  Rob.  Ent.  263. 

{k)  Dy.  107,  a.   1  Bro.  Ent.  204.   Co.  Litt.  32,  b. 

[I)   Co.  Litt.  32,  a.  ("")  Co.  Ent.  172,  a,  b.  Hob.  71.   lO^J- 


134  PARK  ON  DOWER. 

Or  that  it  was  made  after  marriage,  and  the  wife  agreed  to  it  after  the 
husband's  death. (n) 

To  which  the  demandant  may  reply  that  the  estate  was  not  made  to 
such  uses,  or  that  it  was  not  for  a  jointure. (o) 

So  the  tenant  may  plead  that  the  husband  levied  a  fine,  and  the  de- 
mandant made  no  claim  within  five  years  after  his  death. (/?) 

To  which  she  may  say  that  she  brought  her  action  of  Dower  within 
five  years. ((7) 

Or  the  tenant  may  plead  that  the  demandant's  husband  made  a  feoff- 
ment of  the  lands  to  him,  and  was  afterwards  attainted  of  treason, (r) 

And  a  replication  that  her  husband  was  pardoned  will  not  it  seems  be 
any  answer,  for  reasons  which  have  been  already  adverted  to.(6) 

Or  the  tenant  may  plead  that  the  demandant  and  her  husband  levied 
a  fine,  or  suffered  a  common  recovery  of  the  lands.(/) 

Or  that  the  husband  of  the  demandant  is  alive.(z^) 
r    *3q'?    1       *'^°  which  plea  the  demandant  replies  that  her  husband 
L  J  is  dead,  and  thereon  a  day  is  given  for  proof  of  his  death, 

which  must  be  made  in  court  by  two  witnesses  at  least. (v) 

An  1  at  the  same  day  the  tenant  may  examine  his  witnesses  that  the 
husband  is  alive.(w)  And  if  it  appears  to  the  court,  by  witnesses, 
that  the  husband  is  dead,  the  demandant  shall  have  judgment  imme- 
diately, (a:) 

So  if  the  proof  of  the  death  is  not  direct,  if  there  is  no  proof  of  his 
being  alive. (y) 

The  tenant  may  plead  that  he  assigned  a  rent  of  so  much  joer  annum 
to  the  demandant  in  recompense  of  her  Dower.  But  he  must  show 
what  estate  he  had  in  the  land  at  the  time  of  granting  this  rent,  so  as  it 
may  appear  to  the  court  that  he  had  power  to  grant  it,  and  if  he  omit  to 
do  this  the  demandant  may  demur.(2) 

The  tenant  may  plead  that  the  demandant  is  seised  of  a  third  part  of 
the  land  demanded  already;  but  he  must  show  who  assigned  it,  or  that 
she  recovered  it,  for  if  she  were  in  by  disseisin,  she  must  have  Dower 
of  other  remaining  two  parts  nevertheless,  (a) 

r    *9Q4    1       -^^  ^^y  P'sad  that  other  lands  were  assigned  for  Dow- 
L  J  er  *by  the  heir,(6)  or  by  himself  who   was  assignee  of  the 

husband. (c) 

Or  that  the  demandant  had  released  her  Dower  to  the  tenant  of  the 
freehold.  ((/) 

The  tenant  cannot  plead  a  prior  term  of  years  in  bar  to  the  action, 
for  it  is  no  bar  in  Dower,  but  he  may  plead  it  in  delay  of  execution,  and 
to  save  himself  the  damages,  if  there  was  no  rent  reserved  upon  the 


00  Co.  Ent.  171,  h.  172,  a.  Rob.  Ent   261. 

(0)   Co.  Ent.  172,  a,  b,  (p)  Co.  Ent.  171,  a.  Clift.  305.  Dal.  107. 

(9)  Co.  Ent.  171,  b.  (r)  2  Hawk.  PI.  Cor.  c  49. 

(s)   Supra,  p.  221.  (t)  Rob.  Ent.  237. 

(u)   1  Bro.  Ent.  205.  Bend.  pi.  131.  1  And.  20. 

(v)  Hend.  pi.  131.  Dy.  185,  a.  (w)  Ibid.  Moor,  14. 

(x)  Bend!,  pi.  131. 

(y)    1  And.  20.   Moor,  14.  Seep.  247,  supra. 

(:)  Beaumont  v.  Dean,  2  Leon.  10.  Moor,  59.     Cro.  Eliz.  451. 

(a)   39  E.  3.  17.  (b)   Moor,  26,  59. 

(c)  Com.  Dig.  Pleader.  (2  Y.  15.)  {d)  Cro.  Jac.  151. 


OP  THE   WBIT  Oy  DOWEB.  135 

term;  or  if  there  was,  praying  that  the  demandant  may  be  endowed  of 
the  reversion  and  the  rent.(^) 

And  if  the  tenant  docs  not  |)lead  such  term,  he  cannot  set  it  up  after- 
wards, as  a  prior  title,  to  an  ejectment  brought  by  a  tenant  in  iJower, 
after  her  recovery,  to  obtain  possession. (/") 

Of  the  other  sort  of  phias  which  achnit  the  title  of  Dower,  but  allege 
some  excuse  or  reason  for  not  niakinji  an   assignment,  are 

1.  Detinue  of  Charters.  This  pU;;i  alleges  that  the  demarulaut  (ictain«i 
the  deeds  and  evidences  belonging  to  the  estate,  and  that  the  tenant  waa 
always  ready  to  assign  her  Dower  if  she  would  deliver  tliem;  conse- 
quently it  cannot  be  pleaded  after  im|)arlance.(^') 

*But  no  person  but  the  heir  can  plead  this  plea,  for  it  lies  ^  •nqr  -i 
only  in  privity. (A)  •-  J 

And  if  he  pleads  this  plea,  he  must  show  the  certainty  of  the  charters, 
so  that  a  certain  issue  may  be  joined,  or  that  they  are  in  a  chest  or  l>ox 
locked  or  sealed. (e) 

And  if  the  heir  delivered  the  charters  to  the  wife,  he  cannot  plead 
detinue,  for  she  has  them  by  his  own  act.(X*) 

And  as  the  privity  is  the  foundation  of  this  plea,  it  shall  not  be  plead- 
ed even  by  the  heir,  if  he  has  the  land  by  purchase,  and  not  as  heir,(/) 
or  if  he  be  not  immediately  vouched,  but  only  by  the  vouchee  of  the 
tenant, (m)  or  if  he  comes  in  as  vouchee  having  no  lands  in  the  county 
where  the  Dower  is  demanded, (/i)  or  if  he  comes  in  as  tenant  by  re- 
ceipt.(o) 

In  two  of  these  cases  there  would  be  an  obvious  absurdity  in  the  plea, 
for  the  jdca  alllrms  that  the  tenant  has  been  always  ready,  and  yet  is,  to 
render  Dower,  if  the  demandant  would  deliver  to  him  his  j.  •on/:  i 
*charters,  and  tenant  by  receipt,  or  vouchee  over,  cannot  ^  J 

render  the  demandant  her  Dower,  nor  can  she  recover  it  against  him.(/7) 

In  these  cases,  therefore,  the  widow  may  recover  her  Dower  although 
she  persists  in  detaining  the  charters,  but  an  action  of  detinue  \s':\\  lie 
against  her  for  them. 

Aiul  it  is  saiil,  tliat  if  the  wife  be  with  chilil,  the  heir  for  the  time 
being  cannot  plead  detinue  of  charters,  for  she  may  keej)  them  for  the 
infant.(9) 

It  should  also  be  remarked  that  this  plea  is  not  a   bar  for  more  lands 

(<?)  8co  Booth  V.  Lindsay,  2  Rayni.  I'JOJ.  Hoi).  Ent.  2:i7.  .Viion.  2  Mod.  18.  ViUcrt 
V.  Hanlcy,  2  Wils.  49. 

(/)  Lindscy  v.  LinJsey,  1  Salk.  291.  2  Ravm.  1291. 

(g)  Kast.  Ent.  224,  A.  229,6.  liro.  Uow.  pi.  M.  Moor,  81.  Hob.  199.  9  Co.  18. 
Dal.  100.  Perk.  sec.  357.  IJurdon  v.  llurdon,  1  S.ilk.  2.')2.  1  Show.  271.  Comb.  J83. 
It  is  now  held  that  an  imparlance  is  not  to  be  granted  in  Uowur.   Ko.itcr  v.  Kiibv,  Uaruc«,  3. 

(A)  9  Co.  18.  Dy.  230,  a. 

(/)  9  Co.  18,  110.     Plow,  85.  a,  b.     Dy.  230,  a.     1 1  Hen.  «./•  /.  Perk,  tc  356. 

{k)  9  Co.  18,  b.  (cites  7  E.  3.     Dow.  101.  Doct.  Plac.  IfiO.) 

(/)  9  Co.  18,  b.  (cites  Ry.  230.  pi,  52.  8  E.  3.  bo.  Docl.  PImc.  150.)  Dy.  S30.  a.  Perk. 
sec.  35G. 

(w)  9  Co.  18,  //.  (cites  18  E.  3.  3G,  b.     Doct.  PI.  150.)     Dy.  230,  a.  Perk.  •«:.  S.SS. 

(h)   9  Co.  18,  b.  (cites  Doct.  PI.  150. 

(o)   9  Co.  18,  b.  (.cites  16  E.  3.    Dow.  57,  75.     Doct.  PI.  22.  151.)     Dy.  230,  «.  Pcik. 

sec.  358. 

(ft)  ycc  9  Co.  18,  b.  19,  b.     Dv.  230.  a. 

(q)  Bro.  Dow.  pi.  8.  Perk.  sec.  3G0.  .\*  to  the  issue  in  ibii  cam,  tec  Womaa's  Law- 
yer,  262. 


136  PARK  ON  DOWER. 

than  the  charters  concern,  (r)  But  one  coparcener  may  have  this  plea 
after  partition,  though  the  evidences  concern  the  other  parcener  and 
herself  equally.(.?) 

If  the  demandant  replies  to  this  plea  that  she  is  ready  to  deliver  them 
to  the  tenant,  and  hrings  them  into  court,  she  may  pray  judgment  upon 
his  confession  immediately.(^) 

The  demandant  may  also  reply  that  she  does  not  detain  the  deeds.(w) 

^        *So,  the  tenant  may  plead  that  he  has  always  been,  and 

L      '^    '     J  still  is  ready  to  render  Dower;  and  if  he  pleaded  this  plea 

oi  tout  temps  prist,  at  the  return  of  the  summons,  he  may  pray  that  the 

demandant  may  not  have  damages.(i>) 

But  the  demandant  may  reply,  that  she  requested  her  Dower,  and 
the  tenant  refused  to  assign  it,  and  issue  shall  be  taken  upon  thdLt{w) 

It  is  said  to  be  a  good  plea  in  bar,  that  the  lands  of  which  a  third  part 
is  demanded  in  Dower  are  pf  gavelkind  tenure,  of  which  Dower  is  by 
custom  of  a  moiety,  (a;) 

It  seems  that  a  feme  who  claims  Dower  shall  have  advantage  of  an 
estoppel  by  deed  between  her  baron  and  the  tenant. (y)  So  also  she  shall 
be  bound  by  an  estoppel.  As  where,  in  a  writ  of  Dower  against  a  guar- 
dian, the  issue  was  whether  the  demandant  was  feme  of  the  father  of  the 
heir,  and  it  was  found  by  verdict  that  she  was  not,  it  was  held  the  heir 
should  estop  her  by  this  verdict  to  claim  her  Dower,  though  he  was  not 
wholly  privy  to  it,  because  he  should  have  been  bound  by  it,  if  this  had 
been  found  against  the  guardian. (z) 

^  ^       *In  writs  of  Dower,  the  parol  shall  not  demur  for  the  non- 

L  -*-'o  J  j^gg  Qf  j-^-^g  heir,  because  of  the  mischief  that  might  accrue,  if 
the  demandant,  claiming  only  an  estate  for  life,  should  die,  and  lose  the 
estate. (a)  But  it  is  said  in  the  ancient  law  books,  that  if  a  feme  after 
the  death  of  her  husband  suffers  one  to  continue  a  year  and  a  day,  and 
he  dies  seised,  his  heir  within  age,  the  feme  shall  not  have  Dower  dur- 
ing the  nonage  of  such  heir,  but  the  parol  shall  demur,  because  it  was 
her  folly  that  she  did  not  bring  her  suit.  (6) 

III.  As  to  the  judgment. 

The  judgment  in  this  action,  generally  speaking,  is  to  recover  seisin 
of  a  third  part  of  the  tenements  in  demand  in  severalty,  by  metes  and 
bounds,  and  the  mesne  profits  and  damages.(c)  But  if  the  judgment  is 
obtained  against  several  tenants  in  common,  it  is  error  if  it  be  said  '  in 


(r)  Dy.  230,  a.  Perk.  sec.  357.  (s)  Bro.  Dow.  pi.  41.  Perk.  sec.  359. 

(t)  Rast.  Ent.  224,  b.  230,  a.  Hob.  199.  9  Co.  18,  19,  (cites  10  E.  3.  49.  a.  21  E. 
3.  8,  b.)  And  it  seems  that  if  dower  is  brought  against  two,  who  plead  detinue  of  charters, 
if  the  demandant  delivers  them  to  one  of  them,  although  out  of  court,  she  shall  be  excused 
against  the  other.    F.  N.  B.  138,  n.  (cites  21  E.  3.  8.  per  Manby.) 

(u)  Rast.  224.  b.  Moor,  81.  See  p.  227,  supra,  as  to  the  danger  of  this  plea,  if  false. 

(v)  Rast.  Ent.  236,  b.  237,  a.;  1  Bro.  Ent.  205 ;  Co.  Litt.  32,  b.;  Lut.  717;  2  Mod.  25. 

(w)  See  Hargr.  Co.  Litt.  33,  a.  n.  (1.);  13  Ed.  4.  f.  7;  1  Lutw.  717. 

(x)   Anon.  Sav.  91. 

(i/-)  Roll.  Abr.  Estoppel  (L.)  pi,  1  (cites  3  H.  4.  6.  Dubitatur.     Co.  Litt.  252,  a.) 

(i)  Roll.  Abr.  Estoppel.  (L.)  pi.  11  (cites  30  Ass.  51.) 

(a)   1  Roll.  Abr.  137.  Smith  v.  Smith,  Cro.  Jac.  HI;  3  Leon.  392  ;  3  Bulstr.  138.    Gore 
V  Perdue,  Cro.  Eliz.  309  ;  Herbert  v.  Binion,  Cro.  Jac.  392. 
"(6)  Fleta,  1.  6,c.  43;  Bract.  252;Britt.  c.  lll,f.  47;  Cro.  Jac.  392. 

(c)  See  the  form,  2d  Towns.  Judg.  102,  pL  25,  26  ;  2  Saund.  331,  332. 


OF  THE   WIlIT  OF  DOWER.  137 

severalty  by  metes  and  bounds,'  but  it  may  be  '  in  three  parts  to  be  di- 
vided.'(^/) 

If,  in  Dower,  the  tenant  vouches  the  heir  of  the  Iiusband  in  the  ume 
county,  and  the  heir  demands  the  lien,  and  denies  it,  it  is  said  this  j»sue 
shall  he  tried  before  the  demandant  shall  have  judgment  in  Dower. (cj 

*lt  has  been  already  observed  that  where  the  tenant  vouches  .or  o  l 
the  heir,  the  demandant  may  witness  that  the  heir  has  lands  ^  "  J 
by  descent  in  the  same  county,  and  she  shall  have  judgment  against  liie 
heir  conditionally. (/) 

So  if  the  heir  enters  into  the  warranty  of  the  tenant,  and  [deads  ri>/M 
per  descent,  and  the  issue  is  found  ai:;fiinst  him  that  he  has  lands  in  the 
same  county,  the  demandant  shall  have  judifinent  against  the  heir;  but 
if  the  issue  be  found  for  the  heir,  she  shall  have  judgment  against  llie 
tenant.  (^) 

And,  in  this  case,  she  may  have  judgment  against  the  heir  condition- 
ally, without  waiting  till  the  issue  of  assets  he  tried.  (A)  Hut  it  seems 
that  it  is  not  error  if  she  has  judgment  against  the  tenant  with  cesstt 
execittio  until  the  issue  is  determined,  for  if  it  is  found  against  the  heir, 
the  tenant  may  have  scire  fucins  against  him.(/) 

And  if  she  recovers  against  the  heir,  and  is  afterwards  evicted  by  title 
paramount,  then  she  may  have  scire  fdcias  against  ihe  tenant  to  have  in 
recompense,  (/c) 

If  the  sheriir,  after  a  recovery  in  Dower,  delivers  seisin  to  the  demand- 
ant upon  the  writ  of  hab.  fac.  seisiiiam,  this  is  in  law  on  ouster  of  all 
termors  in  possession  of  the  land,(/)  and  therefore,  if  the  title  of  the 
"^termor  is  prior  to  the  title  of  Dower,  and  this  appears  to  ,  .^^^  , 
the  court,  cither  upon  the  jjlea  of  the  tenant, (m)  or  the  sug-  ^ 
gestion  of  the  termor,  on  prayer  to  be  received  for  his  term,  the  interest 
of  the  termor  will  be  saved  in  giving  judgmcnt.(;i)  This  is  cflccted 
either  by  giving  judgment  specially,  that  the  demandant  shall  recover 
seisin  of  the  reversion,  upon  which  a  writ  of  halt.  fac.  seis.  is  awarded 
to  the  sherilf,  with  a  proviso  quod  ten.  ad  termin.  annur.  uon  expel- 
/atur;{o)  or  by  giving  judgment  generally,  with  acesset  executio  t\uring 
the  term.  Tlie  former  mode  is  adopted  where  there  is  any  rent  reserved 
upon  the  lease  for  years,  in  order  to  enable  the  dowress,  as  the  rever- 
sioner, to  obtain  the  benefit  of  the  rent;(/7)  and  although  the  rent  lo- 

(d)  Glefold  V.  Carr,  Brownl.  ami  UolJ«b.  127. 

(e)  Jenk.  Cent.  4.  ca.  52  ;  Dy.  307;  but  see  9  Co.  17.  A. 

(/)   Sec  p.  27C.  supra  ;  9  Co.  IS.  (^)  Jenk.  Cent.  4.  c«.  .02  ;  U«ll.  62. 

(A)  Grey  v.  Williams,  Dy.  202,  b. 

(i)  Golilingham  v.  Saunds  Winch.  81;  Cro.  Joe.  686. 

(k)  27  H.  8,  c.  10  ;  32  H.  8,  c.  r> ;  Wynrh.  89. 

(/)  See  3  Leon.  10^!  ;  l)Ut  it  is  saiil  lluU  he  who  claiinii  the  loaw  for  yoom.  may  r«-««tar 
into  the  land  notwithslandinp:  the  recovery  and  the  execution  of  iho  dower ;  and  if  b«  Im 
ousted,  he  shall  have  his  action.      Foljan.lm's  ease.    Go.lb.    103  ;  and   ««  .Mirhcll  ^   Hyde. 

1  Leon.  92  :  and  therefore  it  wa«  thought  in  tho  former  caw.  ihut  the  .hcnjr  .hould  iw». 
execution  as  if  there  was  not  any  lease  for  yearn.  See  ul»o  1  Com.  188  ;  and  i  Saund.  by 
"Williams,  7.  c.  note. 

fml  Sec  V.  294,   supra.  ,         ^      ,        ... 

(n)  Sec  Williams  v.  Drew,  3  Leon.  ICH  ;  Green  v.  Hoe.  2  Com.  580;  Booth  r.  Luv  Wy. 

2  Raym.  1291. 

(o)   Whoatley  V.  Best.  Noy,  G.-i ;  Cro.  Ehz.  564.  „  ..      .    .  r-    ,.     ,,» 

(v)   1  Koll.  678;  Noy,  G.-i;   Anon.  Ow.  32  ;  Winch.  80 ;   Foljtrobe'a  ewe.  Godh.    185 
Co  Litt  32  fl.;  1  Com.  188,  in  Bodmyn  v.  Child  ;  but  see  Jouk.  ]>.  73,  pi.  38,  conU*. 

Vol.  XI.— 2  N 


138  PARK  ON  DOWER. 

served  is  but  of  a  peppercorn,  it  seems  that  the  dowress  is  entitled  to  an 
immediate  execution.(<7)  If,  however,  there  is  no  rent  payable  in  re- 
spect of  the  term,  as  where  lands  are  limited  or  devised  to  one  for  years, 
remainder  to  another  in  fee,  or  upon  a  common  demise  with  no  clause 
*"ni  1  of  reservation,  execution  will  be  stayed  during  *the  continu- 
'-''-'  ance  of  the  term,  as  no  benefit  could  arise  to  the  dowress 
from  her  obtaining  seisin,  (r) 

Dower  being  a  real  action,  no  damages  were  at  the  common  law  re- 
coverable by  the  wife  for  the  detention. (5)  By  the  statute  of  Magna 
Charta,(^)  indeed,  as  we  have  already  seen,  her  Dower  was  to  be  assign- 
ed to  her  within  forty  days  after  the  death  of  her  husband;  but,  as  Coke 
observes,  "of  little  effect  was  that  act,  for  that  no  penalty  was  thereby 
provided  if  it  were  not  (\one.''{ii)  By  the  statute  of  Merton,(z;)  how- 
ever, the  grievance  was  partially  remedied  by  the  following  provision: 
"  Of  widows  which  after  the  death  of  their  husbands  are  deforced  of 
their  Dowers,  and  cannot  have  their  Dower  or  quarentine  without  plea, 
whosoever  deforce  them  of  their  Dowers,  or  quarentine  of  the  lands 
whereof  their  husbands  died  seised,  and  that  the  same  widows  after  shall 
recover  by  plea,  they  that  be  convicted  of  such  wrongful  deforcement; 
shall  yield  damages  to  the  same  widows;  that  is  to  say,  the  value  of  the 
whole  Dower  to  them  belonging  from  the  time  of  the  death  of  their 
husbands,  unto  the  day  that  the  said  widows,  by  judgment  of  our  court, 
iiave  recovered  seisin  of  their  Dower,  &c. ;  and  the  deforcers  neverthe- 
less shall  be  amerced  at  the  King's  pleasure."  The  language  of  this 
r  *or\o  1  statute,  it  will  be  observed,  extends  '^the  recovery  of  damages 
L  "^  "'  -"  to  those  cases  only  where  the  husband  died  seised, (it')  and 
the  seisin  intended  by  the  statute  is  held  to  be  a  seisin  of  the  inheritance, 
so  that  upon  the  death  of  the  husband,  the  possession  immediately  de- 
A^olves  upon  the  heir;(a?)  and  therefore  if  the  husband  aliens,  and  retakes 
for  life,  the  wife  shall  have  no  damages  on  this  dying  seised,  for  it  was 
only  of  frank-tenement. (y)  But  it  is  immaterial  that  he  dies  seised  of 
an  estate  tail.(2-) 

It  seems,  however,  that  although  the  husband  does  not  die  seised,  the 
wife  may  become  entitled  to  damages  against  the  alienee,  &c.  by  a  de- 
mand and  refusal  of  Dower,  but  such  damages  will  be  recovered  only 
from  the  time  of  the  demand. (a)  On  this  point  the  books  observe,  that 
"she  can  lay  no  default  in  the  feoffee  till  she  demand  her  Dower  upon 
the  ground,  and  that  the  tenant  be  not  there  to  assign  it,  or  if  he  be 

((?)  See  Pheasant  v.  Pheasant,  3  Ch.  Rep.  69  ;  Tiffin  v.  Tiffin,  2  Freem.  66. 

(r)  Perk.  sec.  335  ;  Noy,  6.5  ;  Bodmyn  v.  Child,  1  Com.  185;  and  see  Brown  v,  Gibbs, 
Pr.  Gh.  97;  2  Freem.  233  ;  Godb.  165. 

(.«)  See  2  Inst.  286;  10  Co.  116.  (t)  Cap.  7. 

(m)   Co.  Lilt.  32,  b.  34,  b.  (v)  20  Hen.  3,  c.  1. 

(w)  Jenk.  Cent.  1.  ca.  85  ;   Dy.  284.  a.  pi.  33  ;  Bro.  Damages,  pi.  52. 

(x)  Co.  Liu.  32,  6.  (cites  16  E.  3.  Damages,  83 ;  8  E.  2.  ibid.  U.) 

(tf)  Yelv.  112.  Dame  Egerton's  case,  cited  Litt.  K.  341;  Hargr.  Co.  Litt.  32,  b.n.  (4.); 
3  Bulstr.  278  ;  and  it  has  been  held,  that  if  the  husband  is  outlawed,  the  wife  shall  not  re- 
cover damages  upon  the  ground  that  this  is  a  forfeiture  of  the  frank-tenement.  Bro. 
Damages,  pi.  98  (cites  13  Ass.  5.)  Bro.  Utlagary,  pi.  36  (cites  M.  3  E.  3,)  but  Brooke 
makes  a  query  thereof,  for  the  forfeiture  was  but  of  the  profits,  and  not  of  the  frank-tene- 
ment ;  and  Hcc  Bro.  Forfeiture  de  Terres,  pi.  30,  75  ;  Bro.  Utlagary,  pi.  59. 

(z)  Thynn  v.  Thynn,  Styles.  69. 

(a)  Jenk.  Cent.  1,  ca.  85  ;  Dr.  and  Stud.  Dial.  ii.  ch.  14. 


OF  DAMAGES  IN  DOW T.R.  139 

tlicrc,  that  lie  will  not  assign  it;  for  he  that  hath  the  possession  o(  land 
vvhcrcunlo  any  woman  hath  til Ic  of  Dower,  hath  good  aiillior- 
ity,  ""as  against  her,  to  take  the  jirolils  till  she  require  her  ^    ^"^^^     J 
Dower. "(/.») 

And  even  the  heir  iiimself  may,  as  has  hecn  already  noticed, (c)  Have 
himself  from  damages,  if  he  comes  in  upon  the  summons  the  first  day, 
and  acknowledges  the  action,  and  pleads  loiil  /emps  prist,  i.  e.  aver* 
that  he  was  at  all  times  ready  to  render  Dower,  if  it  had  heen  demanded. 
In  what  cases  he  may  plead  this  plea  has  heen  already  staled.  If  the 
demandant  takes  issue  upon  it,  the  damages  will  await  the  event  of  the 
issue.(c^) 

For  this  reason  it  is  that  J^oid  Coke  ohserves,  "  it  is  necessary  for  the 
wife,  after  the  death  of  her  hushand,  as  soon  as  she  can  to  demand  her 
Dower  hefore  good  testimony,  for  otherwise,  she  may  hy  her  own  de- 
iault  lose  the  value  after  the  decease  of  her  hushand,  and  her  damages 
for  detaining  of  Dower. (e) 

But  even  where  tlie  heir  j)leads  /out  temps  prist  with  success,  the 
demandant  shall  recover  damages  from  the  teste  of  the  original  to  the 
execution  of  the  writ  of  inc[uiry. 

In  Corsellis  v.  Corsellis,(y)  upon  a  trial  at  har,  the  issue  was,  whe- 
ther there  was  a  demand  of  Dower  and  refusal,  to  entitle  the  plaintiff  to 
damages.  The  plaintifl'  proved  an  actual  demand  of  the  heir,  heing  of 
the  age  of  fourteen  years,  and  then  in  her  custody;  *though  ^  -ond  1 
hy  his  father's  will  committed  to  another  person.     The  in-  '-  J 

fant  said  his  guardian  woukl  not  let  him  assign  Dower.  Resolved 
unanimously  upon  dchate,  1st,  that  Dower  was  demandal)le  of  the  heir, 
though  he  was  under  age:  2d,  that  his  guardian  was  hut  in  the  nature  of 
a  guardian  in  socage,  and  that  the  Dower  was  not  demandablc  of  him, 
hut  of  the  heir,  though  not  in  the  custody  of  the  guardian;  and  that  if 
the  heir  had  entered  upon  the  land  to  assign  Dower,  he  would  not  be  a 
trespasser  upon  the  guardian,  thougli  the  custody  of  the  land  was  com- 
mitted to  such  guardian,  during  the  infancy  of  the  heir:  3(.\,  that  the  ne- 
glect of  the  heir  in  not  assigning  Dower  upon  demand,  though  he  did  not 
actually  refuse  to  do  it,  was  such  a  refusal  in  la\v  as  to  entitle  tlie  widow 
to  damages. 

Of  course,  if  the  heir  controverts  the  title  of  Dower,  he  cannot  avail 
himself  of  tlic  plea  o{  tout  tev^ps  prist;  and  therefore,  whatever  delay 
may  have  been  made  hy  the  widow,  she  will,  if  judgment  be  given  in 
her  favour,  be  entitled  to  damages  from  the  death  of  the  husband.  I^rd 
Coke  indeed  remarks,  that  "  some  say  that  the  ilemandant  in  a  writ  of 
Dower,  that  delayelh  lierself,  shall  not  recover  damages;"(5')  hut  this 
seems  to  be  no  further  true  than  as  it  may  enable  tlie  heir  to  save  him- 
self of  damages,  on  the  plea  of  tout  temps  prist.  In  l)ol)son  v.  Dob- 
son, (A)  in  error  upon  a  judgment  in  Dower,  one  of  the  errors  assigned 
was,  that  damages  were  given  <)  morte  viri,  whereas  they  ought  only  to 

(b)  Dr.  and  Stud.  Dial.  ii.  ch.  14.  (r)   Supra,  p.  !:97. 

Id)   Co.  Liu.  ;J2,  0.  33,  «.;   Dr.  and   Stud.    141;    llro.  Dumani-s.  pi.  52,79;   Bro.  Toot 
temps  prist,  pi.  34  ;  Bro.  Dow.  pi.  32  ;  Lut.  717.   Bro.  Enqucst.  pi.  79  ;  Gilb.  Ham,  375. 
(e)   Co.  Litt.  3'2,  b  ;  and  see  Gilb.  Dow.  375,  376. 
(/)   Hull.  N.  P.  117;  1  Crui.  Dig.  Hii). 
Iff)  Co.  Lilt.  32,  b.\  and  see  Gilh.  Dow.  375,  376. 
(A)  C».  t.  Hardw.  I'J.  2  Barn.  B.  R.  ISO. 


140  PARK  ON  DOWER. 

^^  f.  -,  have  been  given  from  the  time  of  suing  out  the  writ,  *since 
[  305  J  •j.jjjjj  j^qj  appear  there  was  any  demand  of  Dower  in  pais; 
and  Co.  Litt.  32,  33,  was  cited,  that  the  demandant  should  take  care  to 
make  demand  as  soon  as  possible,  lest  she  lose  the  value  of  her  Dower, 
and  that  the  heir  does  no  wrong  till  a  demand  is  made.  But  it  was  re- 
plied, that  it  was  incumbent  on  the  tenants,  would  they  have  excused 
themselves  from  damages,  to  have  pleaded  tout  temps  prist,  as  the 
words  of  the  statute(z)  expressly  require;  and  upon  this  answer,  the 
court  overruled  the  exception.  And  in  Kent  v.  Kent,{k)  the  same  ex- 
ception was  overruled  in  a  case  where  the  writ  was  not  brought  till  two 
years  after  the  death  of  the  husband. 

But  where  the  demandant,  after  the  death  of  her  husband,  entered, 
and  continued  in  possession  five  years,  and  afterwards  the  heir  entered, 
upon  which  she  brought  Dower,  it  was.  agreed  that  the  tenant  need  not 
plead  tout  temps  prist  after  his  re-entry,  for  the  time  the  demandant 
had  occupied  was  a  sufficient  recompense  for  the  damages.(/) 

The  feoffee  of  the  heir  cannot  plead  tout  temps  prist,  because  he  had 
not  the  land  all  the  time  from  the  death  of  the  husband,  and  therefore 
the  demandant  shall  recover  the  mesne  profits  and  damages  against  him; 
and  if  he  has  not  provided  his  indemnity  and  recompense  against  the 
heir,  it  is  his  own  to]\y.{m) 

^  *By  damages  are  to  be  understood  the  profits  of  the  third 

I  JUb  J  p^^j.  gjj^gg  ^Yie  death  of  the  husband,  or  the  teste  of  the  ori- 
ginal, (after  deducting  outgoings),  and  such  damages  as  the  wife  has 
sustained  by  the  detention  of  her  Dower,(?i)  which  are  usually  assessed 
severally,  although  damages  given  generally,  without  finding  the  value 
of  the  land,  are  good.(o)  If  the  lands  were  leased  for  years  before  mar- 
riage, she  will  recover  Dower,  not  according  to  the  value  of  the  land, 
but  according  to  the  rent ;(7j)  and  it  follows,  that  if  the  rent  reserved 
was  only  a  nominal  one,  no  damages,  or  none  but  nominal  ones,  can  be 
recovered.  The  case  of  Kitchens  v.  Hitchens(5')  illustrates  this  point. 
The  husband's  father  devised,  that  in  case  of  deficiency  of  personal  pro- 
perty to  pay  debts  and  legacies,  his  executors  should  pay  the  same  out 
of  the  rents  and  profits  of  his  real  estate;  and  when  debts  and  legacies 
were  paid,  devised  his  real  estate  to  his  son  in  tail,  with  remainders  over. 
The  executors  entered  on  the  real  estate,  and  the  son  died  before  the 
debts  were  paid,  and  before  he  had  any  possession,  and  his  widow  re- 
(-  »o^7  -1  covered  her  Dower  in  the  Mayor's  Court,  and  227/.  for 
L  J  damages.      She  ^afterwards  instituted  a  suit  in  the  Court  of 

Chancery  to  have  a  mortgage  term  set  aside,  and  for  other  purposes,  and 
on  a  cross-bill  brought  by  the  devisee  of  the  lands  and  executors  to  set 

(»■)  Quaere,  what  statute  1  (k)  2  Barn.  B.  R.  357. 

(/)  Riche's  case,  3  Leon.  52  ;  Dal.  100;  but  see  Belfield  v.  Rous,  4  Leon.  198,  and  quaere. 

(m)  Co.  Litt.  33.  «.;  2  Bac.  Abr.  392  ;  and  see  1  Keb.  87. 

(n)  Dr.  and  Stud.  140.  Hargr.  Co.  Litt.  32,  b.  n.  (4,)  and  see  Spiller  v.  Andrews,  LilL 
Ent.  188.   8  Mod.  25.    Walker  v.  Nevill,  1  Leon.  56.  Penrice  v.  Penrice,  2  Barnes,  191. 

(o)   Hawes'  case,  Hctt.  141. 

If))  Hargr.  Co.  Litt.  32,  b.  32,  a.  n.  (5.)  In  Winch.  80,  in  a  case  where  the  lands  were 
let  for  years  rendering  rent,  it  is  said,  this  doth  save  to  the  tenant  damages  ;  but  it  is  in  all 
probability  a  mistike  of  the  reporter.  It  is  obvious  that  if  the  widow  was  dowable  of  the 
renr,  she  is  as  much  entitled  to  damages  for  the  detainer  of  that,  as  if  she  were  dowable  of 
the  land. 

(y)  2  Vern.  404, 


OF  DAMAGES  IN  DOWER.  1  U 

aside  the  recovery  of  dainaj:;t'.s,  it  was  admitted  Ijy  tl>c  Lord  Keeper  Ihtt 
the  damages  were  carrieil  tou  lar  hack;  she  having  recovered  the  value 
Ironi  the  deatli  of  her  hushand,  whereas  she  ounhl  to  have  had  damages 
but  from  the  time  of  debts  paid  and  trusts  performed,  and  the  verdict  wm 
set  aside  accordingly. 

The  statute  of  Merton,  in  givinj:;  damages,  has  left  the  ni'  ■  ns- 

certainini;  them  to  the  court;  and  the  usual  practice  is,  utd-  tn- 

ages  are  either  a(huitted  by  the  party,  or  ascertained  by  the  jury  who 
try  the  action,  to  grant  a  writ  of  inquiry  ;(r)  an«l  if  judgment  is  8;ivcn 
for  the  demandant  by  default,  confession,  or  any  other  way  than 
by  verdict,  there  must  of  necessity  be  a  jury  impannclled  lo  a5sess 
the  dama!5es.(*)  In  these  cases  a  writ  of  iiupiiry  of  damagis  issuch, 
commanding  the  sheriff  to  inquire  whether  the  husband  died  seised, 
and  if  lie  did,  what  value  the  lands  are  by  the  yi-ar,  and  how  long 
it  is  since  the  husliand  died;  and  upon  return  of  the  inquisition,  judg- 
ment is  entered  for  the  damages.^/)  And  upon  damages  bring  ad- 
judged, they  shall  be  recovered  against  the  tenant  to  the  writ  in  totOy 
notwithstanding  there  may  have  been  several  in  receipt  of  ,  ,„ 
the  profits  successively  since  the  death  of  *thc  husband,  and  ^  "^  J 
not  against  every  one  for  his  time,  as  in  cases  of  l)i8scisin,(f/)  for  the 
statute  of  Gloucester  does  not  extend  to  this  case. 

By  the  words  of  the  statute,  the  damages  are  given  from  the  death  of 
the  luisband  to  the  day  that  the  widow  shall  have  recovered  seisin  bv 
judgment.  But  where  a  writ  of  incpiiry  is  awarded,  it  seems  to  be  now 
established,  contrary  to  the  opinion  of  the  court  in  l^enrice  v.  Penrice, 
2  Barnes,  191,  that  the  value  shall  be  computed  to  the  time  of  assessing 
the  damages  on  the  inquisition,(i')  unless  the  demandant  has  been  in  pos- 
session any  part  of  the  time  under  the  habere  facias  seisinarn,  and  then 
only  to  the  time  of  seisin  delivered. (w)  The  judgments  for  seisin  and 
damages  being  distinct,  the  tenant  may,  if  the  latter  be  erroneous,  re- 
lease the  damagcs,(a')  and  the  judgment  ijiioadKhc  land  may  be  aflirmcd 
in  a  writ  of  error,  and  tlie  jutigment  for  tiamagcs  reversed;(y)  and  until 
the  damages  arc  ascertained  by  the  in(|uisilion,  the  juiigment  docu  not 
bind  the  land,  so  as  to  charge  tlie  heir  if  tiie  tenant  dies  be-  j.  mnr^n  ^ 
fore  *thc  damages  are  assessed, (z)  for  they  are  given  in  re-  ^  -• 

spect  of  the  tort  in  detaining  ])ower,  and  actio  personalis  i/u.r  oritur 
ex  delicto  moritur  cum  persona.  So  also,  if  the  demandant  die  before 
the  damages  arc  ascertained,  the  executor  shall  not  havo  them,  for  the 
damages  arc  no  duly  till  they  are  ascertained;  ami  it  makes  no  liitfer- 
cnce  that  the  tenant  had  entered  into  a  recognizance  (under  Id  and  17 


(r)  Kent  V.  Kent,  2  Ham.  '112.  Hargr.  Co.  Litl.  :tJ,  b.  n.  (1.)  anJ  tt>  2J  Towdc  Jodg . 
100.  101.  pi.  22,  23.     lb.  102,  pi.  21. 

(s)  1  Kcb.  85,  marg.  (cites  3  E.  3.  23,  b.  pi.  13.  Uowcr  V.  73.  3  Cro.  667.  14  H.  7,  25, 
pi.  5,)  and  si'c  Kast.  Eiit.  238,  a.  b. 

(t)  Kast.  Kiiir.  23S,  a,  li.  Dennis  v.  Dennis,  2  Sound.  331. 

(«)  See  1  Kil>.  80,  man;.  Uellielil  v.  Rowsc.  Mo.  S'l.  N.  Ucndl.  l.W.  Co.  Lilt.  33,  .i. 
(cites  1  Ko.  Alir.  O/il  )   Brown  v.  Smith,  Hull.  .\.  P.  117. 

(r)  Dolison  V.  Dolison,  Ca.  t.  Hardw.  I 'J.  2  liarn.  U.  R.  180,  207;  and  •««  ihc  Record 
in  Spiller  V.  Aiidrtvvs,  Lij.  Ent.  180,  incorrectly  reported  in  8  .Mod.  2.'».  Tbjuoa  «.  Tbynnc, 
T.  1019,  (cited  Hurgr.  Co.  Lilt.  32,  (,,  n.  (1.) 

(w)    Walker  v.  Nevil,  1  Uon.  56.  (x)   Hullor  v.  Ayrc,  1    Lron.  92. 

(i/)   Hargr.  Co.  Litt.  32,  b.  n.  (4,)  cites  22  E.4.  40,  and  mc  2  K«ym.  13s.'),  arg. 

(:)   Aleway  v.  Roberts,  1  Kcb.  85,  171,  610,  711.      1  Sid.  ISS.   1  Lev.  3S. 

2  N  2 


142  PARK  ON  DOWER. 

Car.  II.  cap.  8,)  to  pay  the  damages  and  costs  if  the  judgment  were  af- 
firmed, on  bringing  a  writ  of  error.(a) 

No  authority  was  given  by  the  statute  of  Merton  to  superior  courts, 
where  it  came  by  writ  of  error  from  those  below,  to  give  judgment  for 
the  value  till  the  time  of  affirmance  in  their  courts;  but  as  this  was  a 
plain  defect,  the  statute  16  and  17  Car.  II.  c.  8,  sec.  3  and  4,  was  made 
in  order  to  give  them  such  power,  (b) 

No  damages  can  be  recovered  on  a  writ  of  right  of  Dower,(c)  because 
damages  can  only  be  given  for  the  detention  of  the  possession;  and  in 
writs  of  right,  where  the  right  itself  is  disputed,  no  damages  are  given, 
because  no  wrong  is  done  until  the  right  is  determined. (f/)  So  also 
r  *'^in  1  where  Dower  was  assigned  in  Chancery,  on  the  writ  De 
*-  -'  Doie  assignandd,  there   *could  be  no  damages:  "  for  (says 

Coke)  the  words  of  the  statute  be,  Et  viduse  per  placitum  reciiperave- 
rint,'^  ^c.{e)  So  if  the  heir  or  his  feoffee  assigns  Dower,  and  the  widow 
accepts  thereof,  she  cannot  afterwards  claim  any  damages;  because  hav- 
ing accepted  the  Dower,  which  is  the  principal,  she  cannot  after  sue  for 
damages,  which  are  only  accessory.  (/") 

If  damages  are  obtained  upon  a  verdict  in  Dower,  the  statute  of  Glou- 
cester (6  Ed.  I.  c.  1,  sec.  2,)  gives  the  demandant  costs;  but  if  no  dam- 
ages are  given,  the  demandant,  although  she  obtains  judgment  for  her 
Dower,  must  pay  her  own  costs. 

By  the  statute  16  and  17  Car.  II.  cap.  8,  sec.  3  and  4,(5-)  it  was  enact- 
ed, "  that  in  writs  of  error  to  be  brought  upon  any  judgment  in  any 
writ  of  Dower,  or  in  any  action  of  ejectione  firrnae,  no  execution  shall 
be  thereupon  or  thereby  stayed,  unless  the  plaintiff  or  plaintiffs  in  such 
writ  of  error(A)  shall  be  bound  unto  the  plaintiff  in  such  writ  of  Dower, 
or  action  of  ejectiune  firmse,  in  such  reasonable  sum  as  the  court  to 
which  such  writ  of  error  shall  be  directed  shall  think  fit,  with  condition 
that  if  the  judgment  shall  be  affirmed  in  the  said  writ  of  error,  or  that 
the  said  writ  of  error  be  discontinued  in  default  of  the  plaintiff  or  plain- 
r  *311  1  tiffs  therein,  or  that  *the  said  plaintiff  or  plaintiffs  be  non- 
L  J  suited  in  such  writ  of  error,  that  then  the   said   plaintiff  or 

plaintiffs  shall  pa}""  such  costs,  damages,(i)  and  sum  and  sums  of  money, 
as  shall  be  awarded  upon  or  after  such  judgment  affirmed,  discontinuance 
or  nonsuit  had.  And  to  the  end  that  the  same  sum  and  sums  and  dam- 
ages may  be  ascertained,  it  is  further  enacted,  that  the  court  wherein 
such  execution  ought  to  be  granted,  upon  such  affirmation,  discontin- 
uance, or  nonsuit,  shall  issue  a  writ  to  inquire  as  well  of  the  mesne  pro- 
fits,(^)  as  of  the  damages  by  any  waste  committed  after  the  first  judg- 
ment in    Dower,  or  in  ejectione  firmx;  and  upon  the  return  thereof. 


(a)  Mordant  v.  Thorold,  Carth.  13.3.  1  Salk.  252.  1  Show.  97.  3  Mod.  281.  3  Lev. 
275.  Rep.  t.  Holt,  305,  and  see  2  Bro.  C.  C.  629,  632,  in  Curtis  v.  Curtis. 

(6)  Cd.  t.  Hardw.  50.  (c)  Co.  Litt.  32,  b.   1  Keb.  86.  arg. 

(</)  1  Crui.  Dig.  169. 

(e)  Co.  Litt.  33,  a.  (cites  43  Ass.  pi.  32.  F.  N.  B.  263,)  and  see  Bro.  Damages,  pi.  195, 
(cites  42  Ass.  32,  and  43  E.  3,  32.) 

(/)  Co.  Lilt.  33,  a.     1  Crui.  Dig.  170.     Fitzh.  N.  B.  148,  n.  Gilb.  Dow.  375. 

{g)  Irish.  17  and  18  Car.  2,  c.  12.  (A)  See  Barnes  v.  Bulwer,  Carth.  121. 

(()  See  Glefoid  v.  Carr,  Br.  and  Goldsb.  127,  that  a  writ  ^f  error  cannot  be  brought  bj 
the  tenant  to  a  writ  of  dower  before  the  damages  found. 

{k)  See  Kent  v.  Kent,  2  Stra.  971. 


WRIT  OF   nOWF.K    HARKKI)  UV   NON-CLAIM.  H3 

judgment  shall  be  give  and  execution  awarded   for  such  mesne  pronta 

and  diiniages,  and  also  for  costs  of  suit." 

No  statute  of  limitations  has  j)ioscribed  any  period  for  the  brinf;ine 
of  a  writ  of  Dower.  The  remedy,  however,  may  he  barred  by  the  stat- 
ute of  non-claims,  if  the  husband  levies  a  fine  with  proclamations,  and 
the  wife  does  not  bring  her  writ  of  Dower  within  five  years  aft«:r  her 
title  accrues  by  the  death  of  her  husband,  or  after  the  disabilities  (if  any,) 
existing  at  that  time,  are  removed. (/)  So,  "if  the  husband  .  , 
aliens  in  fee,  and  his  alienee  levies  a   fine  with   proclama-  «■  J 

tions,  non-claim  on  this  fine  will  be  a  bar  to  the  writ  ofDower.(»i) 
The  same  effect  may  arise  from  a  fine  levied  by  the  heir  or  devisee  of 
the  husband. (?<)     And  it  has  been  licid  tlial  a  mere  delivery  of  the  writ 
of  Dower  to  the  sheriif,  without  *j)rocuriiig  the  same  to  be  ^     »„ 
returned,  is  not  a  sullicicnt  claim  to  avoid  the  fine. (o)  ^       JlJ    J 

But  if  the  husband  levies  a  line  with  j)roclamations,  and  afterwards  ig 
attainted  of  treason,  and  dies,  and  the  heir  reverses  the  attainder  by  writ 
of  error,  the  wife  sliall  have  her  Dower,  notwithstanding  five  years  had 
passed  after  the  death  of  the  husband  before  the  attainder;  for  during 
the  attainder  she  could  not  claim,  and  the  action  and  right  of  Dower 
accrued  to  her  after  reversal  of  the  attainder.(/;) 

It  is  a  general  proposition  in  most  of  our  text  books,  as  well  as  in  the 
decided  cases,  tbat  no  line  will  operate  as  a  bar  by  non-claim,  unless  the 
estates  or  interests  of  the  jiersons  to  be  barred  are  devested  at  tbe  time 
of  levying  the  line,  either  by  some  previous  act,  or  by  the  operation  of 
the  fine  itself.  Hence  the  necessity  that  the  person  by  whom  the  fine 
is  levied  should  be  seised  of  the  immediate  freehold,  unless  the  estates 
of  those  against  whom  the  benefit  of  the  non-claim  is  to  be  obtained, 
have  been  previously  turned  to  a  right;  for  a  fine  levied  by  a  remaiuder- 


(/)  Damport  v.  Wripfht,  Dy.  224,  a.  Anne  Summer's  case.  Winch.  Gfi.  2  Co.  93.  10 
Co.  49,  99.  Moor,  .'>:}.  .Shop.  T.  28,3-.:.  .Mcrivillc's  case.  \.i  Co.  20.  Gold.b.  14S,  pi. 
71.  Anon.  3  I.eon.  M.  Crave  v.  Brougliton,  Dul.  I()7.  ^S.  C.  lb.  62.  2  Koll.  R.  C9.  8.  P. 
arg.  (cites  15  Eliz.  Paine's  case.)  This  point  was  formerly  iJoul>(eil  :  »pc  '.I  Lron.  60,  and 
Stowel's  case,  I'low.  373,  u.  where  the  learned  commentator  says — "  Note,  reader,  that  in  my 
opinion,  if  the  husband  levies  a  line  wiili  |iroclamati<>ns,  and  live  year*  pa»«  after  the  proela- 
mations,  the  wife  shall  not  be  bound  to  live  years  after  the  death  of  the  hu»band,  but  ii  ai 
large,  and  not  touched  by  the  purview  of  the  act  of  4  H.  7,  [c.  24.]  For  the  purvietr  «rma 
against  those  who  had  right  at  the  time  of  the  fine  levied,  or  had  future  right  after,  upon  a 
cause  arising  before  ;  to  which  future  right  wrong  was  done  before  the  fine,  or  liy  the  fine, 
&.C. :  but  here,  in  case  of  dower,  the  title  is  accrued  all  alter  th«  fine ;  ir.  by  ttie  death  of  lh« 
husband,  for  till  the  deatii  no  title  was  consummate  ;  niul  the  other  two  point*,  3f.  inlrrmar- 
riage  and  seisin  of  the  Imsband,  are  not  of  any  moment  without  the  third,  «o  that  all  Um 
three  points  are  but  one  cause  after  the  line." — *'  But,"  say*  Cuko,  in  reply  to  the  reasoning 
of  Plowden,  "  allhouKh  to  the  consummation  of  dower,  three  things  are  rr<|iii»ite,  lh.it  i«  to 
say,  marriage,  seisin,  and  the  death  of  the  husiiand  ;  and  althoueh  nt  the  tune  of  the  fine 
levied,  her  title  was  not  consummate,  that  the  law  res|>ect<  the  fir»t  and  original  cautr*.  ic. 
marriage  and  seisin."  2  Co.  93.  And  in  another  place,  he  »ayi«, — '  .\nd  the  opinion  of 
Plowden  aforesaid  is  not  held  for  law,  as  api)ear8  in  0  K.  6.  Dy.  72,  and  iu  Uamport'a  ra»«, 
in  5  El.  224.  Dy.  it  appears  it  wa.i  adjudj;ed  to  the  contrary  in  4  H.  H,  and  now  commoa 
experience,  without  conirudiclion,  is  against  it."      10  Co.  49. 

(m)  Shep.  T.  28,  (cites  .\nnc  Twist's  case,  .M.  18.  Jac.  C.  B.) 

(n)    1  Prest.  Conv.  229. 

(o)  Fitzhugh's  case,  3  l.con.  221.  See  aUo  .\non.  lb  .'iO,  and  »sid,  per  Dyer  J.  that  the 
bringing  a  writ  of  dower  was  the  only  way  the  wife  could  make  her  claim,  for  »hc  coulJ  not 
enter  to  avoid  the  line. 

{(,)  Menvillc's  case,  13  Co.  19.  Moor.  639,  S.  C.  cited  by  Cok«s  <'.  J.  ■•  rc»olTcd,  fo> 
she  had  no  means  of  reversal.     S.  C.  Sav.  51.     3  Inst.  215.  b.  2  Bulalr.  215. 


144  PARK  ON  DOWER. 

man  or  reversioner  can  operate  as  a  conveyance  only,  and  not  as  a  de- 
vestment  or  discontinuance.  But  the  very  terms  of  the 
[  *314  J  ^^^jg  exclude,  rather  than  embrace,  *the  case  of  persons  hav- 
incr  executory  titles,  or  future  rights  only,  at  the  time  of  levying  the  fine; 
and  as  it  would  appear  that  there  can  be  neither  a  necessity  or  a  capa- 
city to  devest  that  which  is  not  vested,  it  may  be  safely  assumed,  that  a 
title  of  Dower  may  be  barred  by  non-claim  on  a  fine,  although  levied  by 
a  person  who  had  no  seisin  of  the  immediate  freehold.  The  case,  in- 
deed seems  to  be  rather  an  illustration  of,  than  an  exception  to  the  gen- 
eral rule  above  stated.  If  this  view  of  the  subject  be  correct,  it  is  clear 
that  Ann  Twist's  case,{q)  which  has  been  considered  hostile  to  the  mo- 
dern decisions  on  non-claim,  does  not  in  the  least  interfere  with  the 
principle  of  those  decisions.  In  that  case,  as  reported  in  Shepherd's 
Touchstone,  it  was  held,  that,  "  if  one  seised  of  land  in  fee  marry  a  wile, 
and  after  make  a  lease  of  this  land  to  A.  for  life,  the  remainder  to  B.  in 
fee,  and  B.  levies  a  fine  with  proclamations,  and  the  husband  dies,  and 
the  wife  doth  not  make  her  claim,  &c.  within  five  years  after  the  death 
of  her  husband,  hereby  she  is  barred  of  her  Dower  for  ever,  notwith- 
standing the  estate  for  life  in  A.{r) 

It  appears  from  a  note  in  Bosanquet  and  Puller's  *Re- 
[  '^^^^  J  ports,  (Vol.  II.  New  Series,  p.  37,)  that  Ann  Twist's  case 
was  under  the  consideration  of  the  judges,  in  the  case  of  Rowe  v.  Pow- 
er there  reported,  and  that  the  roll  having  been  searched  by  direction 
of  the  judges,  no  judgment  appeared  to  have  been  entered.  The  report- 
ers add  that  the  learned  author  of  the  Touchstone  was  therefore  proba- 
bly mistaken  in  supposing  any  judgment  to  have  been  given  in  that  case, 
and  Mr.  Sugden,  in  his  valuable  notes  to  Gilbert  on  Uses,(5)  has  stated 
that  Ann  Twist's  case  was  expressly  over-ruled  both  in  the  case  of  Rowe 
and  Power,  and  in  that  of  Carhampton  v.  Carhampton.(/)  The  autho- 
rity of  Twist's  case,  as  a  legal  decision,  must  certainly  fail  in  the  absence 
of  the  judgment:  it  may  be  submitted,  however,  with  the  greatest  de- 
ference, that  for  the  reasons  above  mentioned,  the  principle  of  the  case, 
as  stated  by  Shepherd,  is  by  no  means  inconsistent  with  the  cases  men- 
tioned by  Mr.  Sugden. 

It  seems  that  a  warranty  is  no  bar  in  a  writ  of  Dovver.(t^)  Lord  Coke 
remarks,  that  "  there  are  some  titles  to  which  a  warranty  doth  not  ex- 
tend, as  the  title  in  case  of  discharge,  condition  upon  mortgage,  &c. 
mortmain,  consent  to  ravisher,  or  the  like;  because  for  these  no  action 
r  *  1  fi  T  lies  in  which  there  *can  be  voucher  or  rebutter,  neither  can 
t  J  a  descent  toll  the  entry  in  such  cases;  and  they  continue  in 

such  plight  and  possession  as  they  were  by  their  original  creation;  and 
they  by  no  act  can  be  displaced  or  divested  out  of  their  original  essence. 


(7)  Shep.  T.  27. 

(r)  The  case  is  shortly  stated  in  Hob.  265,  under  the  name  of  Twisse  v.  Cotton,  thus — 
«  Tenant  for  life,  the  reversion  in  fee,  of  land  whereof  the  demandant  had  title  of  dower,  and 
brought  a  writ  of  dower  against  the  tenant  for  life.  Hanging  the  writ,  [he]  in  the  reversion 
levied  a  fine  with  proclamations  of  the  reversion  ;  the  tenant  for  life  died,  the  five  years  ex- 
pired, and  now  the  demandant  brings  a  new  writ  of  dower  against  the  tenant  in  possession." 

(O   P.  122,  note.  (0  Irish  T.  R.  567. 

(n)  Arg.  Roll.  R.  307,  in  Holland  and  Lee,  (cites  34  E.  3.  Garranty,  72.  21  E.  4,  8,) 
and  ib.  S.  P.  admitted  by  counsel,  but  said,  this  seeais  intended  where  the  title  of  dower  ac- 
crues after  the  warranty  descended. 


OF  SUITS  FOR  DOWER  IN  COURTS  OP  EQUITV.  115 

Vide  34  E.  III.  Garranty  72.  A  collateral  warranty  shall  not  bar  a  title 
of  Dower,  for  that  continues  the  essence  according  to  the  original  crea- 
tion, and  yet  for  that  an  action  is  given. "(v) 


•ClIAPTKR  XV.  [  -317  j 

Of  the  REMEDiEs/or  the  recovehv  of  DOWER  in  courts  o/eqcitt. 

It  appears  that  so  early  as  the  reign  of  Klizahcth,  courts  of  equity  had 
assumed  some  kind  of  remedial  jurisdiction  on  claims  of  Dower.  In  a 
case  of  Wild  v.  Wells,(«)  (1583)  a  bill  to  have  Dower  set  out,  and  for 
arrears,  was  entertained  in  Chancery;  and  it  seems  to  have  been  consid- 
ered that  that  court  mitrjit  set  out  the  Dower  by  commission,  and  aa 
order  nisi  was  made  accordinj^ly.  From  the  very  short  notes  of  this 
case  in  the  books,  it  is  impossible  to  gather  what  the  equity  was  founded 
on;  unless,  perhaps,  upon  the  ground  that  the  claim  of  arrears  involved  a 
species  of  account,  arul  tliat  the  court  having  thus  obtained  a  jurisdictioa 
of  the  subject,  would  proceed  to  decree  complete  relief,  upon  an  admission 
probably  of  the  legal  title. 

Unless  this  case  may  be  considered  to  the  contrary,  the  jurisdiction  as 
to  Dower  in  courts  of  equity  does  not  appear^  until  within  a  verv  recent 
period,  to  have  assumed  any  higher  character  than  that  of  auxiliary;  but 
at  the  present  day  these  courts  seem  to  be  considered  as  possessing,  to  a 
great  extent,  a  concurrent  jurisdiction  as  to  Dower  with  ,  •ojc  i 
*courts  of  law.     It  may  perhaps  admit  of  doubt  whether  the  ^  -' 

doctrine  has  not  been  carried  higher  than  the  reason  of  the  case  justifies. 

The  earlier  cases  in  which  courts  of  equity  have  entertained  bills  re- 
lative to  Dower,  have  proceeded  upon  the  common  equitable  ground  of 
paving  the  way  to  the  establishment  of  a  legal  right,  by  I'urnishing  a 
discovery  of  matters  essential  to  the  prosecution  of  that  right;  or  putting 
out  of  the  way  impediments  which  might  be  set  up,  against  conscience, 
to  obstruct  the  success  of  the  claimant;  and  this  relief  was  gradually 
extended,  probably  upon  the  principle  that  when  a  court  of  c(juity  has 
once  obtained  jurisdiction  over  the  subject  matter  by  reason  of  an 
equitable  question,  it  will  proceed  to  do  complete  justice  between  tho 
parties,  and  to  give  the  whole  relief  to  which  they  are  entitled;  subject, 
as  to  any  (juestion  which  may  arise  of  purely  legal  cognizance,  to  the 
result  of  a  decision  by  the  proper  tribunal. 

Thus  in  Dolin  v.  Coltnian  (1GSI),(/;)  a  wife  joined  with  her  hu.sband 
in  a  mortgage,  and  levied  a  line  to  the  intent  to  bar  her  Dower;  arid  in 
consideration  thereof,  the  husband  agreed  that  the  wife  should  have 
the  equity  of  redemption;  but  he  afterwards  mortgaged  the  estate  himself 
twice  more.  This  settlement  of  the  equity  oi  redenq)tion  was  adjudged 
fraudulent,  as  against  the  subsequent  mortgagees,  but  in  regard  the  wife 
in  confulence  thereof  had  levied  the  line,  it  was  decreed  that  she  sbouK! 
be  restored  to  her  title  of  Dower  [as  against  the  puisne   mortgagees;] 

(v)    10  Co.  98,  b.  Co.  Liu.  389,  a. 

(n)    1  Dick.  3.     Toth.  115,  and  sec  Thomas  v.  Tlioma»,  Tolh.  163. 

(6)    1  Vern.  294. 


146  PARK  ON  DOWER. 

r  *'3i  0  1  "  ^^^  whereas  the  mortgagees  pressed  that  *the  decree  might 
L  -^  only  be,  that  she  should  enjoy  her   Dower,  notwithstanding 

the  fine;  the  court  thought  it  unreasonable  in  this  case  to  put  the  wife 
to  her  writ  of  Dower;  because  they  might  convey  away  the  estate,  and 
she  not  know  against  whom  to  bring  her  writ  of  Dower;  and  therefore 
decreed  the  Dower  to  her."(c) 

This  decree  seems  to  have  proceeded  on  the  admission  by  the  mort- 
gagees of  her  right  to  Dower,  and  the  probability  of  difficulty  in  the  pro- 
secution of  her  right  at  law.  But  little  reliance  can  be  placed  on  the 
vague  and  unsatisfactory  report  in  Vernon,  and  the  case  is  inconsistent 
with  itself,  as  it  immediately  before  states  that  the  husband  and  wife 
were  both  living. 

In  Shute  v.  Shute(c?)  and  Wallis  v.  Everard(e)  (1708),  the  court  re- 
fused to  entertain  bills  for  Dower,  because  there  was  no  impediment  at 
law. 

In  Moor  v.  Black(/)  (1735),  the  plaintiff  charged  in  her  bill,  that  her 
husband's  ancestor  died  seised  of  several  estates,  which  upon  his  death 
descended,  as  to  o?ie  Tnoiety,  upon  her  husband  in  fee,  who  died  he- 
fore  any  ]jartition  made,  and  that  the  defendants  had  got  jjossession 
of  all  the  title-deeds,  whereby  she  was  disabled  from  suing  for  her 
Dower  at  law,  and  therefore  came  into  that  court  to  have  her  Dower 
assigned. 

The  defendants  demurred,  for  that  the  plaintiff's  right  of  Dower  was 
a  right  merely  at  law,  and  triable  by  a  jury;  and  that  no  impediment 
was  suggested  why  she  could  not  recover  at  law. 

r  *'520  1  *^'^  arguing  the  demurrer  it  was  insisted  for  the  plaintiff, 
*-  -'  that  she  was  proper  to  come  into  that  court,  both   by  rea- 

sons of  the  deeds  being  in  the  defendant's  hands,  without  which  she 
could  not  prove  her  title  at  law;  and  also  for  that  the  estate  being  in  co- 
parcenary, and  no  partition  made,  the  sheriff  could,  upon  recovery  in  a 
writ  of  Dower,  put  her  into  possession  but  of  a  third  of  an  undivided 
moiety;  and  that  still  recourse  must  be  had  to  that  court  for  a  certainty, 
and  to  set  out  a  part  to  her;  the  judgment  in  Dower  not  reducing  it  to 
more  certainty  than  it  was  before,  and  that  by  bringing  this  bill  the 
plaintiff  had  only  done  at  first  what  she  must  have  done  at  last. 

It  was  insisted  on  the  other  hand  for  the  defendant,  that  though  the 
plaintiff  might  be  entitled  to  a  discovery,  yet  she  could  not  be  so  to  have 
Dower  assigned  her;  that  being  a  title  merely  at  law,  and  for  a  detainer 
of  which  damages  were  to  be  assessed  by  a  jury;  and  that  she  was  not 
entitled  to  the  possession  of  the  deeds,  but  that  they  belonged  to  the  de- 
fendant. 

Lord  Chancellor  Talbot  over-ruled  the  demurrer  upon  both  points, 
saying,  that  there  was  no  possibility  for  the  plaintiff  (as  appeared  to  him) 
to  recover  without  the  assistance  of  the  deeds;  for  the  estate  descending 
upon  her  husband  in  July,  and  he  dying  upon  the  11th  of  March  after, 
before  any  receipt  of  rent  or  partition  made,  she  could  not  prove  a  seisin 
at  law  to  entitle  herself  to  Dower.(^) 

(c)  1  Vern.  295.  (J)  Pr.  Ch.  111. 

(e)  3  Ch.  Rep.  161.  (/)  Ca.  t.  Talb.  126. 

is)  T^'s  observation  is  inaccurate.  An  actual  seisin  is  not  necessary  to  a  title  of  Dower. 
See  p.  31  supra.  It  would  be  sufficient  to  prove  the  seisin  of  the  ancestor,  his  death,  and  the 
heirship. 


OF  SUITS  FOR  DOWER  IN  COURTS  OF  EQUITY.  147 

"Secondly,  That  she  lay  under  anulher  difliculty,  as  her  r    •„ 
husband's  estate  was  complicated,  and  that  she  must  come  *•  J 

there  for  a  partition;  otherwise  the  consequence  would  Ikj  that  udtr 
judgment  and  execution  she  must,  at  the  end  of  every  six  nionih-*,  Ijc 
driven  to  her  action  airainst  such  as  held  jointly  with  her,  and  who  re- 
ceived the  profits,  fur  lier  share,  and  also  for  her  dainagfs  for  the  de- 
tainer; which  would  he  absurd  and  unreasonable. 

In  the  case  of  Dormer  v.  Fortescue  (17M),  upon  a  question  of  equi- 
table relief  as  to  rents  and  profits, Lord  Hardvvicke  incidentally  remarked, 
"So  in  the  case  of  Dower,  if  a  widow  is  entitled  to  Dower,  and  her 
claim  is  merely  upon  her  legal  title,  but  she  cannot  ascertain  the  lands 
out  of  which  she  is  dowablc,  this  court  will  assist  her  to  fmd  out  the 
lands,  and  the  court  will  order  her  to  proceed  upon  a  particular  part,  and 
reserve  the  further  consideration  till  after  judgment,  anil  if  her  title  of 
Dower  is  established,  will  give  her  profits."  &c.  He  added, '*  I  will 
put  this  case;  supj)ose  a  widow  entitled  to  Dower  of  an  estate,  uj>on 
which  a  term  for  years  was  standing  out,  and  she  had  her  title  of  Dower 
out  of  the  reversion  of  the  term,  and  she  comes  into  this  court  to  have 
it  removed  out  of  the  way,  they  will  decree  her  an  account  of  the  rents 
and  profits  from  the  time  of  her  title  accrued,  and  will  set  the  term  as  a 
satisfied  one  out  of  the  way;  but  if  that  term  had  been  out  of  the  way, 
(md  she  had  no  need  to  come  into  this  court,  it  icould  have  been 
utherwiscy^h) 

*In  the  subsequent  case  of  Curtis  v.  Curlis(/)  (177S),  a  .  ,,..,,,  , 
bill  was  filed  setting  forth  a  title  of  ])ower  in  the  plaintiff,  •-  **'  J 
and  that  notwithstanding,  the  defendantas  heir  at  law  and  devisee  of  her 
husband  had  taken  possession  of  the  estates,  and  praying  an  account  of 
one-third  of  the  rents  since  the  decease  of  the  husband,  and  to  be  let  into 
possession  of  one-third  of  the  lands,  and  decreed  to  hold  the  same  for 
life.  The  defendant  insisted,  by  answer,  that  the  plaintiff  was  never 
married  to  the  deceased,  and  therefore  that  she  was  not  dowable;  and 
Lord  Chancellor  liathurst  ortlered  llu^  bill  to  be  retained  for  twelve 
months,  with  liberty  to  the  plaintilT  to  bring  her  action  at  law  to  try  her 
right  to  Dower,  and  in  case  she  should  do  so,  the  consideration  of  costs 
and  further  directions  were  reserved  till  the  master  should  have  made 
his  report;  but  in  case  she  should  not  proceed  to  trial,  the  bill,  as  far  as  it 
prayed  relief  as  to  Dower,  was  to  stand  dismissed.  The  plaintifT  having 
obtained  a  verdict  at  law,  anil  an  order  at  the  Rolls  (upon  a  hill  of  re- 
vivor and  siqiplemcnt),  that  the  former  decree  should  be  carrieil  into 
execution,  and  the  defendants  having  petitioned  for  a  re-hearing,  the 
cause  was  re-heard  before  Lord  Alvanley  upon  a  ipiestion  as  to  the  ac- 
count of  rents  and  profits:  and  it  was  urged  in  argument  by  the  counsel 
for  the  plaintifl',  that  tiie  bill  of  revivor  and  supplement  could  not  bo  dis- 
missed without  re-hearing  the  first  decree,  and  they  insisted  Uiat  "it 
never  was  suggested  at  tlie  former  hearing,  that  this  bill  for  Dower  was 
improper;  because  it  was  perfertly  understood  "to  have  been  ^  ^^^^  , 
the  settled  practice  of  the  court  io  grant  commissions  to  ns-  ^  *  J 
sio-n  Dower  where  no  legal  inij)ediiiii;nt  has  been  proved;  nor  would  it 
have  been  tried,  but  for  the  doul)t  ujjou  the  marriage."  Lord  .Mvanlcy, 
in  giving  judgment,  took  occasion  to  observe  that  it  was  now  a  settled 

(A)  3  Alk.  130,  131.  (i)  »  Bro.  C.  C.  620. 


148  PARK  ON  DOWER. 

point  that  Dower  is  a  mere  legal  demand,  and  that  the  widow's  remedy 
is pynynd facie  at  law.  But  then  the  question  comes,  whether  the  widow 
cannot  come  either  for  a  discovery  of  those  facts  which  may  enable  her 
to  proceed  at  law;  and  on  an  allegation  of  impediment  thrown  in  her  way 
in  her  proceedings  at  law,(>t)  this  court  has  not  a  right  to  assume  a  juris- 
diction to  the  extent  of  giving  her  relief  for  her  Dower,  and  if  the  al- 
leged facts  are  not  positively  denied,  to  give  her  the  full  assistance  of 
this  court,  she  being  in  conscience  as  well  as  law  entitled  to  her  Dower. 
^  1  *Cases  have  been  mentioned,  to  show  that  there  must  be 

L  J  some  fraud  to  give  this  court  a  jurisdiction,  and  that  in  the 

simple  case  of  a  woman  claiming  her  Dower,  no  such  jurisdiction  exists. 
Dormer  v.  Fortescue,  is  also  brought  to  show  that  there  must  be  either 
an  infant  concerned,  or  some  particular  circumstances  in  the  case  to  en- 
title this  court  to  proceed.  Now  it  seems  difficult  to  distinguish  the 
two  cases  of  the  infant  and  the  widow.  The  principle  in  the  case  of  the 
infant  is,  that  he  is  thought  not  conusant  of  his  rights  at  law,  sufficiently 
to  enable  him  to  proceed  there,  and  therefore  the  court  of  equity  will 
give  him  all  the  relief  he  could  have  had  at  law,  and  something  more; 
for  on  a  bill  by  an  infant  for  an  account,  he  will  get  the  mesne  profits, 
which  would  certainly  be  gone  at  law  by  the  death  of  the  party.  I  argue 
in  the  same  manner  for  the  widow.  She  comes  here  and  says  the  law 
gives  me  Dower  out  of  the  estates  of  my  husband,  and  the  mesne  profits 
from  his  death:  I  do  not  know  how  to  proceed;  for  if  there  should  turn 
out  to  be  any  mortgage  or  terms  of  years  in  my  way,  then  I  must  pay 
the  costs.  The  defendant  has  all  the  title  deeds  in  his  hands,  and  knows 
what  the  estates  are;  his  conscience  is  afiected,  and  yet  instead  of  putting 
me  in  possession  of  my  rights,  he  turns  me  out  of  doors,  and  keeps  al' 
the  title  deeds.  Now  I  think  this  argument  is  a  strong  one,  on  the  sub- 
ject of  fraud  and  concealment  on  the  part  of  the  heir,  in  not  informing 
the  widow  of  all  that  is  necessary  to  enable  her  to  proceed  safely  at 
law.  If  then  she  comes  here  for  a  discovery  of  these  matters  which  the 
heir  withholds  from  her,  she  shall  have  her  complete  relief  in  this  court. 
r  *'^2«i  1  *^^  y°^  deny  her  right  to  Dower,  the  question  must  be  tried 
•-  -^  at  law;  but  when  the  fact  is  ascertained,  she  shall  have  her 

relief  here. 

The  reasoning  of  Lord  Alvanley  in  this  case  certainly  puts  the  doctrine 
rather  high;  and  would  go  to  prove  that  in  every  case  in  which  difficulty 
exists  in  proceeding  at  law,  the  court  shall  not  only  exercise  its  ancillary 
jurisdiction  by  removing  the  impediment,  or  furnishing  the  discovery, 
but  shall  proceed  to  give  the  relief  itself  which  is  the  legitimate  result 

(At)  It  does  not  appear  from  the  report  of  Curtis  and  Curtis  that  there  were  any  such  alle- 
gations in  the  plaintiff's  bill;  on  the  contrary,  the  defendant's  counsel  are  represented  as 
stating  that  her  bill  did  not  suggest  any  impediment  to  her  proceeding  at  law,  and  observing, 
that  the  demand  being  at  law,  the  bill  should  have  stated  some  ground  (as  a  fraud  or  other 
impediment  to  her  trying  her  title  at  law)  for  coming  into  a  court  of  equity.  It  was,  how- 
ever, staled  at  the  bar  by  Mr.  Lloyd,  on  the  hearing  of  Mundy  v.  Mundy,  that  it  appeared 
from  the  register's  book  that  the  bill  charged  that  the  defendant  well  knew  that  the  plaintiff 
had  not  any  of  the  title  deeds  or  writings  showing  what  interest  her  husband  had  in  the  es- 
tate, but  that  all  such  deeds  and  writings  were  in  the  defendant's  own  hands;  that  he  pre- 
tended that  her  husband  was  only  tenant  for  hfe  ;  and  that  there  were  mortgages  and  terms 
for  years  outstanding,  which  he  would  set  up  against  her  claim  if  she  should  proceed  at  law. 
Mr.  Lloyd  added,  that  the  Master  of  the  Rolls  relied  upon  these  charges,  and  stated  that  the 
bill  would  not  have  been  proper  without  such  allegation.     2  Ves.  J.  124. 


OF  SUITS  FOR  DOWER  IN  COURTS  OP  EQUITV.  H<J 

of  the  proceeding  at  law.     The  point  was  put  upon  a  somewhat  differciU 

and  probahly  a  more  judicious  jrnjiind  by  Lord  Louj^hhoroueh  in  the 
subsequent  case  of  Muiuly  v.  MuM(ly.(/)  He  obscrve.l,  in  answrr  to 
wiiat  had  been  said  at  the  bar,  that  "  it  is  a  new  proposition  that  where 
there  is  a  title  at  law  this  court  cannot  in  any  shajK:  or  for  any  puriKiic 
inlerfere.  If  a  legal  title,  such  as  Dower,  is  controverted,  it  must  be 
made  out  at  law.  In  those  cases,  all  that  the  court  has  said  is,  that 
Dower  is  a  legal  title  which  must  be  made  good  at  law.  liut  this  court 
will  act  in  aid  of  the  title.  If  it  is  not  controverted,  it  is  very  similar  to 
the  right  of  a  tenant  in  common.  This  court  has  entertained  bills  for  par- 
tition; and  the  jurisdiction  has  been  admitted  in  bills  for  Dower,  under 
some  circumstances,  for  a  long  time.  The  principh-  of  that  is  just;  for 
where  parties  have  a  common  interest,  they  have  a  right  to  have  it  ascer- 
tiined.  That  necessarily  involves  a  species  of  account.  If  that  is  an- 
swered by  the  proceeding  here  there  is  no  occasion  to  send  it  to  law. 
where  there  *is  a  degree  of  intricacy  and  difficulty.  This  . 
has  had  the  effect  of  almost  putting  an  end  to  writs  of  t  ^^^  ] 
Dower.  In  the  course  of  twelve  years  I  do  not  remember  more  than 
two;  and  they  must  be  in  the  Court  of  Common  Pleas.  Hut  this  juris- 
diction is  peculiarly  proper  on  other  considerations;  for  if  she  was  to 
proceed  at  law,  she  couUl  be  opposed  only  by  a  legal  bar. — Now  equita- 
ble bars  are  in  daily  practice." 

The  particular  point  determined  by  the  ca.se  of  Mundy  v.  Mundy 
was,  that  if  the  title  of  the  plaintiff  to  Dower  is  admitted  by  the  answer, 
the  bill  shall  be  entertained  and  relief  given,  although  no  itupeditnenls 
to  proceeding  at  law  arc  alle'j;ed,  and  therefore  a  demurrer  to  so  much 
of  the  bill  as  sought  to  have  Dower  assigned,  accompanied  by  an  answer 
to  the  discovery,  admitting  the  title  of  the  plaintiff,  was  over-ruled.  This 
case  appears  to  have  jn-oceeded  upon  tbi-  ground  that  the  defendant  hav- 
ing by  his  answer  admitted  the  title  of  Dower,  had  maile  a  trial  at  law 
unnecessary;  and  that  it  was  absurd  to  send  it  to  law  to  have  that  tried 
which  was  not  disputed.  The  exact  case,  however,  can  hardly  occur  at 
this  day,  as  it  is  now  held  that  a  demurrer  to  the  relief  covers  the  dis- 
covery, and  that  such  demurrer  must,  contrary  to  the  former  prjclice, 
be  general ;(r;i)  and  were  a  woman  now  to  lile  a  bill  for  Dower,  not  stat- 
ing any  impediments  at  law,  it  may  be  doubted,  notwithstanding  the  de- 
cision in  Mundy  v.  Munily,  whether  a  general  demurrer  to  such  bill 
Avould  not  be  sustained,  although,  *after  the  strong  disposi-  •007 
tion  manifested  in  that  case,  it  would,  perhaps,  scarcely  be  ^  J 

considered  prudent  to  demur  even  to  such  a  bill.  In  point  of  practice, 
the  writer  believes  that  bills  for  Dower  uniformly  allege  imjK'dinicnta 
to  recovery  at  law,  either  real  or  supposititious,  in  order  to  attract  the 
jurisdiction;  and,  as  the  observation  of  Lord  .Mvanley  in  Curtis  v.  Cur- 
tis, that  if  the  alleged  facts  are  not  posit  irc/i/  denied,  full  relief  will 
be  given  in  ec/uilj/,  necessarily  implies,  that  the  truth  of  such  allegation 
is  essential  to  the  plaintiff's  right  to  relief,  it  wouhl  seem  that,  if  lliat 
observation  can  be  relied  upon  as  the  law  of  the  court,  a  bill  for  Dower 
alleging  impediments  which  do  not  exist  in  fact,  ought  to  prevent  the 
abuse  of  the  jurisdiction  which  might  olherwi.«*e  arise,  be  pleadable  to, 


(/)  2  Ves.  J.  129.      1  Rro.  G.  C.  291.  (w)    10  Vc«.  553.     6  lb.  6«fi. 

Vol.  IX.— 2  0 


150  PARK  ON  DOWER. 

although  a  plea  to  such  a  bill  must  necessarily  be  in  some  degree  a  nega- 
tive pica. 

It  has  been  held,  that  the  defendant  in  a  bill  for  Dower  cannot  plead 
to  the  discovery  and  relief,  that  he  is  a  purchaser  for  valuable  considera- 
tion without  notice.  This  was  decided  by  Lord  Thurlow  in  Williams 
V.  Lambe(7i)  (1791).  This  case  has  frequently  been  considered  as  im- 
l)roperly  breaking  in  upon  the  rule  of  courts  of  equity,  that  a  purchaser 
answering  the  above  description,  shall  not  be  compelled  to  furnish  the 
means  of  attacking  his  own  title.  Lord  Thurlow  is  reported  to  have  ob- 
served, in  over-ruling  the  plea,  that  "the  only  question  was,  whether  a 
plea  of  purchase  without  notice  would  lie  against  a  bill  to  set  out  Dower: 
*QOQ  1  ^^^^  ^^  thought  *where  the  party  is  pursuing  a  legal  title,  as 
L  "J  Dower  is,  that  plea  does  not  apply,  it  being  only  a  bar  to  an 
equitable,  not  to  a  legal  claim." 

Upon  this  point  Mr.  Sugden  remarks,  that  "  to  argue  from  principle, 
it  seems  clear  that  the  plea  is  a  protection  against  a  legal,  as  well  as  an 
equitable  claim;  and,  as  the  authorities  in  favour  of  that  doctrine  cer- 
tainly preponderate,  we  may  perhaps  venture  to  assert,  that  it  will  pro- 
tect against  both."(o) 

The  case  of  Williams  v.  Lambe,  however,  may  perhaps  be  supported 
on  its  particular  circumstances,  on  the  ground  ihat  the  plea  was  bad  as 
covering  too  much,  being  to  the  relief  as  well  as  the  discovery.  The 
dowress  had  a  right  to  recover  against  the  purchaser  at  law,  and  if  it  be 
established  that  a  court  of  equity  has  a  concurrent  jurisdiction  to  assign 
Dower,  such  a  plea  to  the  relief  would  appear  to  be  inapplicable,  al- 
though it  might  be  good  to  the  discovery,  since  the  relief  prayed  is  not 
the  assistance  of  the  court,  to  enable  the  dowress  to  make  good  her  title 
at  law,  but  merely  to  give  her  the  effect  of  a  recovery  at  law.  It  is  in- 
deed observable,  that  the'  observations  of  Lord  Thurlow  in  the  above 
case,  seem  distinctly  addressed  to  the  plea,  as  a  plea  to  the  relief;  and 
his  omitting  to  intimate  that  such  a  plea  might  be  good  as  to  the  disco- 
very, might  possibly  be  accounted  for  by  the  consideration,  that  in  a 
r  *<^oQ  1  case  *so  circumstanced,  a  plea  to  the  discovery  would  almost 
I       '^''       ^  unavoidably  be  over-ruled  by  the  answer. 

Notwithstanding  the  readiness  which  the  Court  of  Chancery  now 
manifests  to  give  relief  to  widows  claiming  Dower,  it  seems  universally 
admitted,  that  the  question  o{  right,  if  controverted,  must  be  sent  to  law 
to  be  tried  by  a  jury ;(/?)  no  case  having  ever  gone  the  length  of  holding, 
that  when  the  parties  are  before  the  court  upon  a  bill  for  Dower,  and  the 
title  of  the  plaintiff  to  be  endowed  is  denied  by  the  answer,  the  court 
has  any  incidental  jurisdiction  to  inquire  into  that  question  itself. 

But  although  a  court  of  equity  will  not  do  this,  it  will  give  every  as- 
sistance to  the  widow  in  its  power,  by  paving  the  way  for  her  to  estab- 
lish her  right  at  law,  and  by  giving  complete  relief  when  the  right  is 
ascertained,  (y)     And,  therefoi-e,  if  she  cannot  ascertain  the  lands  out  of 

(n)  3  Bro.  C.  C.  264. 

(o)  Sugd.  Vend.  668.  The  author  of  the  Treatise  of  Equity  (1.  iii.  ch.  ii.  §  .3,)  observes, 
that  "precedents  of  this  iiind  are  very  ancient  and  numerous,  where  the  court  has  refused  to 
give  any  assistance  against  the  purchaser,  either  to  the  heir  or  the  widow,  the  fatherless,  or 
to  the  creditors." 

(  p)  Curtis  V.  Curtis,  2  Bro.  C.  C.  631,  633.  Mundy  v.  Mundy,  2  Ves.  J.  128  ;  and  per 
Lord  Rcdesdale,  in  D'Arcy  v.  Blake,  2  tSch.  and  Lefr.  391. 

{q)  Curtis  V.  Curtis,  2  Bro.  C.  C.  634.   Mundy  v.  Mundy,  2  Ves.  J.  129. 


OF  SUITS  FOR  DOWEB  IN  COURTS  OF  EQCITT.  15! 

which  she  is  dowable,  the  court  will  assist  her  to  find  out  the  lands,  and 
will  order  her  to  proceed  upon  u  particular  part,  and  rt'servc  the  furlhtr 
consideration  till  after  juil>j;inent:(/*)  so  also,  they  will  aid  her  with  a 
discovery  of  the  tille-(lceils;(.v)  and  the  court  will,  it  sccmuh,  enforce  such 
discovery  au;aiiist  a  purchaser  for  valuable  consideration  without  notirr.  (/) 
*And  a  l)ill  lies  for  the  discovery  of  a  tenant  to  the  praecipe,  ^  .ion  i 
whereby  to  ground  an  action  of  Dower.(M)  ^  J 

We  have  seen,  that  at  law,  the  widow  loses  her  daniat^es  if  the  tenant 
dies  after  judu;nient,  and  before  they  are  assessed,  and  also,  that  if  she 
herself  dies  before  the  damages  are  ascertained,  her  pergonal  representa- 
tive cannot  claim  them.  But,  in  ecpiity,  a  dilFerent  rule  prevails;  anil 
the  court  will  decree  an  account  of  rents  and  |)rofits  against  the  resjxrc- 
tive  representatives  of  tlie  several  ])erst>tis  who  may  have  been  in  |>o»- 
scssion  since  the  death  of  the  husband,  provided  that  at  the  time  of  the 
bill  tiled,  tlie  legal  right  to  damages  was  not  gonc.(y)  This,  if  I  under- 
stand it  rightly,  is  the  result  of  what  is  said  by  Lord  Alvanley,  in  Curtia 
V.  Curtis.  The  expressions  of  that  judge,  however,  as  stated  in  the  re- 
port, arc  open  to  some  observation,  and  may  be  rather  calculated  to  mis- 
lead than  to  produce  a  sountl  conclusion.  lie  is  said  to  have  observed, 
that  "taking  it  for  granted  that  the  widow  comiiii^  ofter  the  death  of 
the  heir,  would  not  be  entitled  to  her  mesne  profits,  it  by  no  nu-ans  fol- 
lows, that  when  the  wiilow  is  right  in  this  court,  but  the  heir  happens  to 
die  before  slie  has  fully  established  her  right,  she  is  not  entitled  to  her 
mesne  profits;  for  unquestionably,  if  the  heir,  instead  of  contesting  the 
widow's  right,  had  admitted  it,  she  would  have  been  entitled  to  her  de- 
cree *for  mesne  profits,  and  his  having  thrown  an  imj)cdi-  ,  ,ggj  , 
ment  in  her  way,  shall  not  make  the  dillerence."     It  might  *-  -• 

be  inferred  from  this,  that  if  the  widow  neglected  to  file  her  bill  in  the 
lifetime  of  the  heir,  slic  would  not  be  entitled  to  a  decree  for  mesne 
profits.  The  reasoning,  however,  on  whicn  it  is  founded,  by  no  means 
bears  out  the  proposition  to  this  extent,  for  we  have  already  seen  that 
the  widow's  right  to  recover  damages  at  law  is  not  necessarily  lost  by 
the  death  or  alienation  of  the  heir,  since,  if  she  had  not  recovered  judjr- 
nient  against  the  heir  during  his  life,  she  may  bring  her  writ  of  Dower 
againsL  his  heir  or  alienee;  and  on  judgment  obtained  on  that  writ,  she 
will  be  entitled  to  damages  for  the  whole  time  from  her  husband's  dcatli. 
The  only  case  in  wliich  damages  are  lost  at  law  by  the  death  of  the  heir, 
is  whenhe  dies  after  judgment,  and  before  the  damages  are  ..-d, 

and  then   his  heir   or  alienee   shall  not  be  charged  in  dam...  .ise 

they  are  not  a  lien  on  the  land  till  ascertained,  and  the  widovv  r^nuol 
obtain  a  fresh  judgment  against  them,  because  she  has  already  recovered 
the  thing  demanded  by  the  writ.  Now,  as  an  action  at  law  for  Dower 
scarcely^ver  has  been  commenced,  when  a  bill  is  filed  in  Chancery,  but 
the  parties  are  onlv  sent  to  law  by  the  court,  to  try  an  i!«sue  upon  some 
question  affecting  the  title  of  Dower,  it  is  ilillicull,  if  not  impossible,  to 

(,)  IVr  Lord    Hnrdwicke.  in    Dornu-r  v.  TorlMCUc.  3  .\ik.  i:«0;  anJ  LorJ  RedcUk  in 
D' \rcv  V.  I'.luko,  "2  Scli.  ami  I-i'fi.  ii'Jl-  ,». . 

(s)   See  2  liro    C.  C.  G:n,  in  Curli*  v.  Curlin;   anJ  '^  -Vh-  anJ  Lofr.   391.  in  V  .Vrcy  x. 

Blake.  „   ^,      ..      .. 

(/)   Williams  v.  Lninlic,  a  lUo.  C.  C.  COl.     Hut  m-c  supra. 

(w)  Kcmpe  V.  Risbie,  Toih.  81.  ,  i...    nn 

Iv)  CurUs  V.  Curtis,  '2  Bro.  C.  C.  f.OC  ;  Dormer  v.  Forlcscue,  3  Alk.  130. 


152  PARK  ON  DOWER. 

find  a  reason  why  the  bill  should  be  filed  in  the  lifetime  of  the  heir,  to 
entitle  the  widow  to  a  decree  for  mesne  profits. 

It  has  also  been  decided,  that  though  the  widow  should  die  before  she 
r  *33''  1  ^^^^  established  her  right  to  *Dower,  equity  will,  in  favour 
'-  "    -'  of  her  personal  representatives,  decree  an  account  of  the  rents 

and  profits  of  the  lands,  of  which  she  afterwards  appeared  dovvable.(z^) 

In  a  case  of  Lindsay  v.  Gibbons,(a')  not  reported.  Lord  Loughborough 
is  said  to  have  stated,  that  there  were  no  cases  that  warranted  giving  in- 
terest on  [arrears  of  ]  Dower. 

It  seems  that  courts  of  equity,  following  the  analogy  to  damages,  under 
the  statute  of  Merton,  will  not  entertain  a  bill  for  mesne  profits,  where 
the  husband  did  not  die  seised:  neither  will  they  where  the  plaintiff  is 
in  possession,  and  consequently  may  have  remedy  at  law.(y)  But  when 
the  plaintiiT  is  in  a  situation  to  be  entitled  to  mense  profits,  it  appears 
that  no  limitation  can  be  set  up  in  equity  to  the  recovery  of  arrears,  for 
there  being  no  limitation  at  law  in  assessing  damages,  the  usual  limita- 
tion of  account  to  six  years,  by  analogy  to  the  statute  of  limitations,  does 
not  apply,  (z) 

Where  a  widow  comes  into  the  Court  of  Chancery,  for  the  single  pur- 
pose of  having  her  Dower  set  out,  costs  do  not  follow  the  suit,  as  of 
course.  But  separate  questions  of  title  often  arise,  which  may  be  con- 
ducted vexatiously,  and  so  as  to  be  the  subject  of  costs,  (a) 
r  *onq  T  *And,  whcro  the  bill  is  for  other  purposes  than  the  single 
L  J  object  of  obtaining  an  assignment,  as  for  an  account,  and  the 

dowress  has  made  every  attempt  to  settle,  and  has  been  vexatiously  kept 
out  of  her  Dower,  without  any  just  pretence,  she  will  have  costs.(6) 


[     *334    ]  ^CHAPTER  XVI. 

Of  the  situation  of  a  dowress  before  and  after  assignment,  and  of 
the  nature  and  qualities  ofsEB.  estate. 

The  situation  of  a  dowress  after  the  death  of  her  husband,  and  before 
assignment,  is  very  peculiar.  Although  the  title  of  Dower  is  consum- 
mate, the  title  of  entry  does  not  accrue  until  the  ministerial  act  of  as- 
signing to  her  a  third  part  in  certainty  has  been  performed  by  some 
other  person.  In  the  mean  time  her  situation  is  an  Anomalous  case  in 
the  law  of  England,  standing  upon  its  own  peculiar  circumstances,  and 
neither  borrowing  nor  affording  any  analogies.  It  is  probably  the  only 
existing  case  in  which  a  title,  though  complete,  and  unopposed  by  any 
adverse  right  of  possession,  does  not  confer  on  the  person  in  whom  it  is 
vested,  the  right  of  reducing  it  into  possession  by  entry.     The  situation 

{yA  Wakefield  v.  Child,  8  July  1701,  MS.  (cited  1  Fonbl.  on  Eq.  23.) 

(a:)   Cited  3  Bro.  C.  C.  495.  {ij)  Delver  v.  Hunter,  Bunb.  .57. 

(r)   Oliver  v.  Richardson,  9  Ves.  222. 

(a)  Lucas  v.  Calcraft,  1  Bro.  C.  C.  I3'l ;  1  Ves.  and  Bea.  20.  n.  See  Curtis  v.  Curtis,  2 
Bro.  C.  C.  632.  "  I  admit  she  has  no  costs,  where  the  heir  has  thrown  no  difficulties  in  her 
way  ;  and  if  the  heir  admits  the  widow's  case,  he  is  safe."' 

(6)  Worgan  v.  Ryder,  1  Ves.  and  Bea.  20. 


OF  DOWER  BEFORE  ASSIGNMENT.  153 

of  a  dowress  has  no  resemblance  to  that  of  a  person  who  hat  become  en- 
titled to  a  parlicuhir  eslalc  by  way  of  remainder  or  sprin^m^  une;  pho 
has  no  seisin  in  law,  nor  can  she  exercise  any  act  of  .jwi,.  i^hip  Ixlore 
assignment. (rt) 

*IIer  title  to  be  endowed  is  not  of  an  undivided  third  of        , 
the  entirety,  but   of  a   third  part   in   severalty,  which   third   L       ^^^     J 
part  is  unascertained  till  a.ssii;nmeiit;  it  bears  no  analogy  therefore  to  the 
case  of  coparceners,  or  oilier   persons   becomin|^  entitled  to  undivided 
shares. 

The  consideration  of  this  subject  is  of  practical  importance,  for  althouf^h 
the  title  of  Dower  is  consummated  by  the  death  of  the  husband,  yet  un- 
til actual  assignment,  that  title  all'ords  no  inipciliment  to  the  validity  of 
a  recovery, (/>)  nor  is  it  to  be.  considered  for  any  other  purpose  as  an  out- 
standing estate  of  freehold. 

]Jut  although  a  title  of  Dower  is  for  most  purposes  nothing  more  than 
a  right  ol  action,  and  consenueutly  transferrable  in  no  other  mode  than 
by  release  to  the  terre-tenant  by  way  of  extinguishment,  yet  it  differs 
from  all  other  mere  rights  of  action  in  not  being  tljc  result  of  any  adverse 
jus  possess 'onis  acquired  by  the  heir  or  feoffee,  anil  as  a  con»c(iuence  the 
mere  possession  of  the  heir  or  feoll'ee  can  never  become  a  bar  to  Uic  title 
of  the  wife. 

,  It  will  also  occur  to  the  student  in  black  letter  law,  that  from  the  ne- 
cessity for  the  concurrence  on  the  part  of  other  persons,  a  ,  •one  ^ 
woman  can  never  be   "remitted   to  her   Dower,  previous  to  ^  -• 

actual  assignment. 

If  the  wife  hath  the  possession  of  the  lands  of  which  she  is  dowabic 
as  guardian  in  socage,  she  shall  be  allowed  the  third  part  of  the  profits 
upon  her  account,  in  allowance  of  her  Dower  in  the  mean  time,  but  she 
shall  not  endow  herself  of  the  third  part  of  the  lands  or  tenemeots,  to 
hold  as  her  freehold. (c) 

The  entry  of  the  wife  upon  her  husband's  ileath,  without  assignment, 
is  by  the  books  treated  as  an  abatement, (^/)  and  a  dowress  in  under  a 
void  assignment,  may  be  treated  as  a  disseisor.(^) 

The  reason  of  the  law  in  denying  any  right  of  entry  in  the  wife,  al- 
though her  title  is  consummate,  is  obviously  to  be  found  in  the  injustice 
which  would  arise  from  permitting  her  to  be  her  own  judge  of  the  par- 
ticular i):irccls  which  she  sball  have  for  her  Dower,  or,  as  ("hief  Uaron 
Gilbert  expresses  it,  to  "  carve  for  herself;'*  while,  on  the  other  hand, 
the  law,  in  favour  of  the  widow,  woulil  not  subject  her  to  the  inconve- 
nience of  holding  an  undivided  part  in  common,  lor  her  Dower,  where 
the  nature  of  the  property  admitted  of  an  endowment  in  severally.  To 
avoid  both  these  evils,  it  became  necessary  to  suspend  her  right  of  en- 

(a)  See  Co.  Litl.  34.  b.  37.  «.;  Lilt.  sic.  13  ;  Perk.  •cc.  lIC.  Hat  it  hn*  txyn  Mi,  ihal 
a  mere  right  of  dower,  witliout  an   axsiirnmiMil.  will  Rain    iho   wiilow  n  ■. .   for  by 

Magna  Cluirla  she  inij;hl  remain  I'urty  days  ;  ami  if  irron>ovB«|i|o  forty  <!  •  iiil  c«»n 

a  selllement;  l>iit  .such  seitloiiinit  will  not  coiiiinunii'alc  itself  to  ■  ncoiiu  i.u«;ianu.  Hex  ». 
Inhabitants  of  I'uinswiek,  Inirr   Seltl.  I'a.  7S3. 

(6)  See  4  Bro.  C.  C.  .'i-.'i,  pir  i-ord  Loiiuhlmrouph.  .\iul  kI>c  mutt  enter,  or  the  »*iMn 
be  actually  delivered  to  her  i>y  the  .sjurill,  Ix  l.)re  the  frecludd  will  Ik*  in  hot.  H«rgf.  t*J. 
Litt.  37.  a.  n.  (1.)  Hut,  she  in.iy  enter  alter  itci»in  without  ony  return  by  Uic  »t)«rUl. 
Palm.  '-tiC).   Hargr.  Go.  I.ilt.  37,  <;.  n.  (X  ) 

(c)   Perk.  sec.  451;  and  see  Co.  Litl.  38,  b.  39.  a,  h. 

Id)  Dal.  100  (f)   I  Burr.  III. 

2  o  3 


154  PARK  ON  DOWER. 

try  until  the  certainty  of  the  parcels  which  she  should  hold  in  Dower 
was  ascertained,  either  judicially,  by  the  officer  of  the  court,  or  by  the 
agreement  of  the  dowress  and  the  terre-tenant. 

^^07  1  *Jt  would  seem  to  follow,  on  principle,  that  where  from 
L  -^37  J  ^j^g  nature  of  the  husband's  tenancy,  or  for  other  reasons, 
the  wife  is  only  entitled  to  be  endowed  of  an  undivided  share,  her  right 
of  entry  would  accrue  immediately  upon  her  husband's  death.  In  one 
case  indeed,  which  is  to  be  met  with  in  the  books,  it  was  said  by  Roll, 
Justice,  that  "  where  a  feme  cannot  be  endowed  per  metas  et  bundas, 
she  may  enter  without  assignment." (/)  In  practice,  how^ever,  the 
author  Ijelieves,  the  point  is  otherwise  considered,  upon  the  authority 
probably  of  the  cases  which  have  determined  that  a  woman  who  has 
obtained  judgment  for  her  Dower,  where,  from  the  nature  of  the  pro- 
perty, an  assignment  can  confer  no  greater  certainty  than  before,  must 
nevertheless  wait  for  an  assignment  before  vshe  can  enter.  Thus  "if  a 
woman  bring  a  writ  of  Dower  of  six  pound  rent  charge,  and  she  hath 
judgment  to  recover  the  third  part,  albeit  it  be  certain  that  she  shall  have 
forty  shillings,  yet  she  cannot  distrain  for  forty  shillings  before  the 
sheriff  do  deliver  the  same  unto  her.  And  so  it  is  when  the  wife  of  one 
tenant  in  common  demands  a  third  part  of  a  moiety,  yet  after  judgment, 
she  cannot  enter  until  the  sheriff  deliver  to  her  the  third  part,  albeit  the 
delivery  of  the  sheriff  shall  reduce  it  to  no  more  certainty  than  it 
was."(g')  The  reason,  however,  assigned  by  Lord  Coke  for  these  cases, 
is  in  terms  confined  to  women  who  have  brought  actions  for  their  Dow- 
r  *<;qs  1  ^^'  ^""^  turns  upon  the  nature  of  *the  writ;  "  for  (he  re- 
L  -"  marks,)   whensoever  the  writ  demands  land,  rent,  or  other 

things  in  certain,  the  demandant  after  judgment  may  enter  or  distrain 
before  any  seisin  delivered  to  him  by  the  sheriff  upon  a  writ  of  habere 
facias  seisinam.  But  in  Dower,  where  the  writ  demandeth  nothing  in 
certain,  there  the  demandant,  after  the  judgment,  cannot  enter  or  distrain, 
until  execution  sued. "(A)  Considering  the  inconsistency  that  would 
arise  from  holding  the  wife  to  be  entitled  to  enter  before,  but  not  after 
judgment,  the  practice  is  probably  right  in  treating  her  as  having  no 
right  of  entry  in  these  cases  before  assignment,  even  if  it  be  founded 
upon  no  better  reason. 

It  is  also  to  be  observed  here,  that  where  Dower  has  once  been  assign- 
ed in  certainty  to  a  woman,  although  she  should  be  afterwards  evicted 
by  a  person  claiming  under  a  prior  title,  yet  if  the  estate  of  the  person 
so  claiming  determines  in  her  life-time,  she  will  be  entitled  to  enter 
without  any  new  assignment.  As,  "  if  there  be  grandfather,  father,  and 
son,  and  the  grandfather  be  seised  of  one  acre  of  land  in  fee,  and  taketh 
a  wife,  and  the  father  take  a  wife  [and  dieth,]  and  the  grandfather 
dieth,  and  the  son  entereth  and  endoweth  his  mother,  against  whom  the 
grandmother  bringeth  a  writ  of  Dower,  and  recovereth,  and  hath  execu- 
tion, and  the  grandmother  dieth,  in  this  case  the  mother  may  enter  into 
the  land  recovered  by  the  grandmother  against  her,  and  retain  the  same 


(/)  Booth  V.  Lambert,  Sty.  276. 

Ig)  Co.  Lilt.  34,  b.  (cites  45  E.  3,  26.  48  E.  3,  36.  22  Ass.  87.  39  E.  3,  12.  37  H.  6, 
38.  39  H.  6,  25.   1  H.  5,  8,  Brev.  199.   30  E.  3,  30.  21  E.  4,  3.  40  E.  3.  22.) 

(A)  Co.  Litt.  34,  b.\  and  see  Perk.  sec.  416,  where  the  same  point  is  stated  to  be  law  be- 
fore writ  of  dower  brought. 


OF  DOWEH  BEFORE  ASSIGNMENT.  155 

land  against  the  donee  [son?]  because  she  was  endowed  thereof  hy  him; 
and  so  shall  it  be  if  the  mother  had  recovered  •against  hinj 
in  a  writ  of  J)ower."(i)  Another  reason  is  ^iv^;n  hy  LonI  ^  *"^*^^  ^ 
Coke,  namely,  that  the  graiulniolhcr  had  in  the  land  '<  an  c-ilate  for  term 
of  her  life,  aiul  the  i;stalc  for  the  lift-  of  tlic  grandmother  is  icuscr  in  the 
eye  of  law,  as  to  her  [the  mother,]  than  her  own  life;"(it)  and  conM- 
quently  she  had  a  reversion. 

So  also  if,  after  jiiiigment  in  Dov/er,  the  sherifl"  offer  to  give  the  de- 
mandant seisin  of  her  third  part,  showing  in  certain  the  parcels,  although 
she  refuse  to  receive  it,  yet  she  may  enter  at  any  time  after,  U-cauK 
the  certainty  appears.  Ikit  siie  shall  not  have  an  alian  habere  facias 
seisina7n.{l) 

As  soon  as  Dower  has  been  assigned  lo  the  widow  by  the  sheriff,  or 
by  the  owner  of  the  land,  and  she  has  executed  it  i)y  entry,  she  becomes 
seised  of  the  immediate  freehold, (;/i)  either  of  the  particular  lands  set 
out  in  Dower,  if  assigneil  hy  metes  and  bounds,  or  of  an  undivided  third 
part  of  the  entirety,  if  assigned  in  common.  All  the  incidents  of  a  free- 
hold tenure  conse(|uenlly  attach  upon  her  tenancy,  and  for  all  purposes 
of  title  in  which  the  concurrence  of  tiic  freeholder  is  reipiisile,  or  the 
existence  of  a  particular 'estate  of  freehold  is  material  to  the  ,  .o.^ 
deduction,  her  tenancy,  to  the  extent  of  the  lands  assigned,  '  J 

must  he  taken  into  consideration  accordingly.  She  must  therefore  join 
in  making  a  tenant  to  the  prrecipe,  for  the  purpose  of  suffering  a  common 
recovery,  or  otherwise  the  recovery  will  be  void  for  her  third  part;  and 
every  real  adverse  action  must  be  brought  against  her,  as  well  as  the 
jierson  who  has  the  freehold  in  the  remaining  lands  or  undivided  parts, 
if  the  entirety  is  sought  to  be  recovered.  As  the  owner  of  a  vested 
particular  estate,  she  is  also  capable  of  a  release  in  enlargement  of  her 
estate,  from  any  person  competent  in  point  of  title  and  privitv  to  make 
that  release;  and  siic  is  of  course  competent  to  alien  her  own  interest  lo 
a  stranger  by  any  of  the  modes  of  conveyance  available  for  transferring 
an  estate  of  freehold.  Although  in  point  of  tenure,  a  dowrcss  holils  of 
the  heir,  yet,  in  point  of  title,  she  is  in  of  the  lands  assigned  to  her  by 
her  husband,  and  not  by  the  person  making  the  assignment. (n)  AJ- 
though  her  right  of  entry  is  sitspciidvd  till  assignment  made,  her  estate 
does  not  take  its  effect  out  of  the  ownershij)  of  the  party  assigning,  but 
it  is  considered  as  a  continuation  of  the  estate  of  the  husband,  and  al- 
though the  heir  entereil,  and  had  an  actual  seisin,  between  the  death  of 
the  husband  and  tlie  assignment  of  Dower,  yet  that  intervejiing  seisin 
does  not  disturb  the  continuity  of  the  wife's  title,  for,*  as  soon  as  her 
Dower  is  assigned,  the  law  supposes  her  in  by  relation  from  the  death  of 
her  husband,  *and  does  away  all  mesne  seisin,  or  as  Coke  ex-  ,  ,  .  , 
presses  it,  "  the  law  adjudgelh  tio  mesne  seisin  between  the  '■  •• 

husband  and  the  wife."(o)     And  by  reason  of  this  relation  lo  the  estate 

(/)   Perk.  sec.  316  fcitrs  8  E.  3,  293.) 

\k)  Co.  Liu.  31, //."(cites  8  E.  3,  lit.  As*.  393,  13  K.  U.  L)ow.  .'.:>.  •.•-•  E.  3,5.  8  E.  3.  3. 
7  II.  6,  4.)   Co.  Liu.  \'i,  a.  (cites  8  E.  2.  Am.  393.  45  E.  3.  13.) 

(/)   Dy.  278,  b. 

(m)  (io.  Litt.  31.  a.  Ami  of  some  things  which  are  entire,  and  cannot  I*  di»iJ«J. 
although  she  .-.hall  he  cniloweJ  of  a  third  part  of  the  profit*  only,  )ft  ah*  ahall  lu»c  i*  «•  i'*^- 
hold  of  llio  third  part;  as  of  a  null.     (Jill'.  Dow.  37  1,397. 

(;i)   3(5  H.  G,  Dow.  30;  Co.  J-iU.  211.  a-,  tJilb.  l"»c».  35G.  395. 

(c)   Co.  Litt.  211.  a. 


156  PARK  ON  DOWER. 

of  her  husband,  it  is  (as  Mr.  Watkins  remarks,)(/))  that  a  remainder 
limited  on  an  estate  in  Dower  (as  where  the  heir  endows  his  mother, 
and  at  the  same  time,  limits  a  remainder  over  to  another,)  is  void:  for 
as  the  particular  estate,  and  the  remainders  limited  thereon  must  form 
together  but  one  estate,  the  remainder  limited  on  an  estate  in  Dower 
cannot  be  good;  as  the  estate  in  Dower  arises  from,  and  has  relation  to 
that  of  the  husband,  and  reference  to  his  death;  and  the  remainder  pro- 
ceeds from  the  heir,  and  arises  from  the  grant  made  by  him;  so  that 
such  heterogeneous  portions  can  never  form  one  estate.  Another  con- 
sequence of  the  wife's  being  in  by  her  husband,  and  not  by  the  heir,  is, 
that  an  assignment  of  Dower  by  the  heir  is  no  consideration  for  any 
thing  moving  from  the  wife,  and  therefore  if  the  heir  assigns  Dower 
unto  his  mother  in  exchange  for  another  acre  of  land,  it  is  said  to  be  a 
void  exchange.((^) 

But  although  for  most  purposes,  a  dowress  is  in  by  her  husband,  yet 
a  contrariety  of  opinion  prevails  in  the  old  books  whether  she  is  in  «in 
\}ciQ  per  ox  the  post ;  namely,  by  force  of  the  marriage  agreement  (in 
which  case  only  she  would,  strictly  speaking,  appear  to  be  in  by  the 
husband,)  or  by  the  general  law  of  the  kingdom.  All  the  authorities 
r  *142  1  ^^^  agreed  that  *tenant  by  the  curtesy  is  in  in  the  post;{r) 
'-  -*  and  some  of  them  place  tenant  in  Dower  on  the  same  foot- 

ing.(.s)  The  majority  of  the  old  books,  however,  treat  her  as  claiming 
by  the  marriage  agreement,(^)  a  doctrine  which  was  undoubtedly  true, 
as  applied  to  Dower  ex  assensu  patris,  and  ad  ostium  ecclesise.  The 
point  seems  to  have  been  put  upon  its  right  ground  by  Serjeant  Nudi- 
gate,  in  a  case  in  Brooke, (w)  where  he  said  the  estate  of  tenant  in  Dower 
is  made  by  the  law,  notwithstanding  that  she  is  adjudged  in  by  the 
baron,  for  yet  this  is  by  the  law,  and  whether  the  baron  will  or  not. 
And  in  the  same  case,  Brooke,  J.  expressly  took  the  distinction  between 
tenant  in  Dower  by  the  common  law,  and  tenant  in  Dower  ex  assensu 
patris,  and  ad  ostium  ecclesise,  observing,  that  the  former  should  not 
be  bound  by  uses  [trusts]  but  the  latter  should,  for  they  were  in  by  the 
feoffee,  while  the  other  was  in  in  the/jer  by  the  baron,  and  yet  by  the 
law,  and  without  the  act  of  the  baron.  Some  observations  have  already 
been  made  on  this  subject  in  another  part  of  this  work.(i»)  It  remains 
only  to  be  observed  here  that  it  is  stated  by  Coke  that  "  a  tenancy  in 
Dower  by  assignment  of  the  heir  doth  work  a  degree,  because  she  is  in 
by  her  husband;  but  assignment  of  Dower  by  a  disseisor  worketh  no 
degree,  but  is  in  ihQpost.^'iiv) 

r  ^040  ■]  *When,  as  in  former  times,  an  actual  assignment  of  one 
^  ^  third  of  the  land  m  Dower  was  every  day's  occurrence,  the 

consideration  of  the  effect  of  such  assignment  upon  the  seisin  as  govern- 
ing the  descent,  was  often  of  vital  importance  to  the  deduction  of  titles, 
since  such  assignment  did  not  merely  turn  the  estate  in  the  one  third 
into  a  reversion,  but  in  consequence  of  the  rule  that  the  dowress  was  in 

(/>)  Walk,  on  Desc.  66,  note;  and  see  Finch's  Law,  13. 

{(j)   Perk.  sec.  272. 

(r)  Gilb.  Uses,  11,  171,  172  ;  (Jo.  Litt.  30.  b.  note  (7.) 

U)   Ibid.  171;  Hob.  27;  1  Co.  122  ;  Bro.  Feoff,  al  uses,  pi.  40. 

'{,t)  Ibid.  11,  172;  Hard.  469;  7  Co.  73  ;  Co.  Litt.  Hargr.  30,  b.  note  (7.)  239,  a. 

(m)  Bro.  Abr.  Feoff,  al  uses,  pi.  10  ;  and  see  1  Leon.  61. 

{v)  Supra,  p.  102,  (w)  Co.  Litt.  239,  a. 


OF  DOWER  AFTKK   ASSIGNMKNT.  157 

from  her  baron,  and  not  Ijy  him  who  endowed  her,  the  assignment  had 
the  eflfect  of  devesting,  by  rehitiun,  all  mesne  seisin  in  the  one  third 
wliioh  had  attached  between  the  death  of  the  baron  and  the  tiuie  ol  lli«- 
assignment,  (a*)  Hence  the  one  third  in  Dower  would  devolve  to  ll»c 
person  who  at  the  death  of  the  dowress  should  be  the  heir  of  ilie  baron, 
witliout  regard  to  mesne  seisins,  while  the  other  rcmaininj^  two  thirds 
would  descend  to  the  heirs  of  the  person  who  successively  acquired  a 
seisin,  governed  by  the  rules  of  descent  as  to  estates  in  postsession.  The 
old  law  books  abound  with  cases  on  this  head,  and  they  uniformly  cstab* 
lish  the  doctrine  that  the  estate  of  the  dowress,  when  assigned,  takes 
efiect  by  relation  to  the  seisin  of  the  husband. (y)  An  actual  assign' 
of  land  in  Dower  so  rarely  happens  at  the  present  day,  that  the  attc. 
of  the  conveyancer  is  scarcely  ever  directed  to  this  point  The  cou- 
sequenccs  of  the  law,  however,  must  still  take  tlfect  where  the  facts  do 
occur  to  call  them  into  action. 

*In  point  of  tenure,  a  dowress  holds  of  the  heir,  or  {Mrrson  .  ,„^  j  ^ 
who  has  the  reversion  in  the  lands  assigned  to  her,  notwith-  '■ 
standing  she  is  in  by  her  husband,  and  not  by  the  heir.(r)  This  point 
is  said  to  originate  in  the  principles  of  the  feudal  system,  according  to 
wliich,  as  a  woman  was  incapable  of  performing  her  jjrojiortion  ol  the 
service!,  a  tenure  was  created  in  the  dowress,  as  to  her  third,  to  hold  of 
the  heir,  immediately  from  the  death  of  the  ancestor;  "  and  tiie  reason 
(says  Gilbert)  why  the  law  created  this  as  a  tenure  was  that  the  heir 
might  be  obliged  to  do  the  service  for  it  during  the  time  of  its  contin- 
uance,(^/)  as  he  was  obliged  to  do  for  all  lands  which  he  had  given  out 
in  tenure,  as  well  as  those  he  held  in  demesne;  and  had  there  been  no 
tenure,  it  had  been  cut  oil' from  tlie  manor  during  the  life  of  the  wife, 
when  the  heir  was  a  tenant  and  no  lord  of  the  nianor."(/») 

The  assignment  of  Dower  then  was,  for  purposes  of  tenure,  a  species 
of  subinfeudation,  and  this  tenure  continued  after  the  statute  of  Quia 
empiores,  since  the  heir  does  not  part  with  the  fce.(c) 

And  although  the  dowress  could  not,  by  reason  of  her  incapacity,  be 
contributory  to  the  heir  for  the  ^military  services,  yet  if  he  ,  .^^^  •, 
holds  over  by  rent,  she  is  attendant  upon  him  by  the  rate 
and  proportion  of  the  rent  which  tiie  land  a.ssigned  unto  her  should 
bear.(^/)  As  if  there  be  lord  and  tenant  by  fealty  and  twelve  pence 
rent,  the  tenant  takes  a  wife,  and  dies,  and  his  wife  is  endowed  ol  the 
third  part  of  the  tenancy  by  the  heir  of  the  husband,  she  shall  be  attend- 
ant unto  him  for  four  pence. (e) 

And  if  a  woman  is  endowed  of  a  manor,  she  shall  pay  all  services  to 
the  heir  as  he  pays  over,  (/j 

(x^   Bro.  Desc.  pi.  19,  (cites  19  E.  2.)  Bro.  Dow.  pi.  S7.  .-    »  n 

(y)  See  Hro.  Descent,  pi.  19,  87.  8  Ass.  fi.  Vin.  Abr.  Dower  (G.  '-'.)  3  Leon.  I5«.  8  Co. 
40.   Co.  Liu.   15,  (I.  Gilt).  I'en.  by  Walkins,  27. 

(i)    Perk.  sec.  VZX.  Y.  N.  B.  7.  F. 

(a)  See  Fitzli.  N.  B.  15'J  (A,)  where  it  is  saiil,  "  if  the  wile  !«•  t.n.ni  in  Jowcr  "  •"? 
land,  she  shall  not  be  distn.ined  to  do  .suit  for  that  luiid  which  .ho  holdcth  in  dowrr.  it  the 
heir  have  sutlicient  land  in  the  same  county  to  bo  distrained  lor  the  miuc.  Ami  it  »"•  f* 
distrained,  then  she  shall  have  a  writ  pro  rxonerulione  lectt  ad  curiam.  Ac-  fe««  U»« 
form  of  the  writ  there. 

(6)  Gilb.  Dow.  337,  :}(il.  (c)  Ibid.  357. 

Id)   Perk.  sec.  424.  Co.  Litt.  31,  o.n.  (2.)  241,  n.    1  H.  4    1.  •»• 

(e)  Perk.  sec.  430,  and  sec  sec.  42').  (/)  Plowd.  v^u.  5*0. 


158  PARK  ON  DOWER. 

If  the  render  be  of  an  entire  thing  which  cannot  be  apportioned,  as  of 
a  horse,  she  shall  be  attendant  unto  the  heir  in  rendering  unto  him  a 
horse  every  third  year;  but  if  the  heir  holds  by  the  service  of  a  horse, 
•price  forty  shillings,  then  she  shall  be  attendant  unto  the  heir  for  thir- 
teen shillings  and  four-pence. (^) 

But  it  has  been  said  that  the  heir  cannot  distrain  for  her  proportion  of 
the  rent,  (/i) 

If  the  heir  grant  the  reversion  of  the  lands  assigned  in  Dower  unto  a 
stranger,  the  tenant  in  Dower  shall  be  attendant  unto  the  grantee;f/)  and 
if  the  husband  had  been  disseised  of  the  tenancy,  and,  after  his  death, 
the  disseisor  assigns  Dower  to  the  wife,  in  that  case  she  shall  be  attend- 
ant unto  the  disseisor. (A") 

P  ^o^/j  j  *Bat  the  attendancy  of  the  wife  is  only  in  respect  of  the 
'-  -■  charge  over,  and  therefore  if  the  lord  release  the  services 

unto  the  heir,  the  wife  shall  not  be  attendant  for  any  rent  after  the  re- 
lease.(/)  And  if  there  be  no  heir,  or  issue  in  tail,  and  the  lord  or  donor 
enter  for  default  of  heirs  or  issue,  the  widow  shall  hold  by  the  third 
part  of  the  services  of  such  lord  or  donor.(77^) 

But  if  the  lord  or  donor  determines  the  estate  of  the  husband  by  his 
own  act,  as  by  purchase,  she  shall  not  render  any  services  to  him.(?'i) 

The  wife,  when  endowed  of  lands  of  which  there  is  any  existing  lease 
for  years,  becomes  the  reversioner,  and  is  entitled  to  the  rent,  or,  as  the 
case  may  be,  a  proportion  of  it.(o)  If  she  is  endowed  only  of  part  of 
the  lands  comprised  in  the  lease,  there  will  be  an  apportionment  in  law 
of  the  rent,  and  she  may  distrain  for  her  part.  So  if  she  is  endowed  of 
the  third  part  of  a  rent  service  of  3/.,  she  shall  distrain  for  20^.,  and  the 
heir  shall  distrain  for  the  other  two  parts  of  the  rent.  (/>) 
r  *'^47  1  ^^^  from  the  nature  of  her  title  it  has  been  doubted  whe- 
*-  -■  ther  a  dowress  can  enter  upon  a  lessee  *for  years  for  condi- 

tion broken.  In  Gamock  v.  ClifF,(^)  the  condition  was  that  if  the  lessee, 
his  executors  or  administrators,  should  do  any  voluntary  waste,  the  de- 
mise should  be  void  and  accounted  none  in  law;  and  the  wife  of  the  re- 
versioner, who  was  endowed  of  the  lands  demised,  entered  for  waste 
done.  It  was  moved  if  tenant  in  Dower,  and  so  in  by  the  law,  not  by 
the  party,  and  so  not  privy,  nor  as  assignee,  could  enter  for  the  condi- 
tion broken.  The  court  was  clearly  of  opinion  that  the  words  of  the 
condition  being  Quando  diniissio predict,  erit  vacua,  &c.  and  no  clause 
of  re-entry  being  reserved,  so  that  privity  was  not  requisite,  the  dow- 
ress might  take  advantnge  of  the  condition.  And  they  cited  the  year 
books  11  11.  17,  and  21  H.  7,  12,  where  the  words  of  a  lease  were  that 
upon  the  not  going  to  Rome  that  the  lease  should  cease,  it  was  holden 
that  the  grantee  of  the  reversion  by  the  common  law  should  take  advan- 


ce-) Perk.  sec.  434.  (A)   1  H.  4,  4,  a.  per  Cokaine. 

(0   Perk.  sec.  427,  (cites  H.  32  E.  3.   Dow.  131.)      Bract.  317. 

(k)  Perk.  sec.  426,  (cites  12  Ass.  pi.  20,)  and  see  the  continuation  of  the  section  for  the 
remedy  of  the  disseisee  in  that  case,  and  the  mode  in  which  the  attendancy  may  be  restored 
to  him. 

(i)  Perk.  sec.  430.  (cites  H.  3  E.  3.  9.) 

{in)  7  Co.  73.     Co.  Litt.  241,  a.     Hughes'  Writs,  144.     See  Plow.  Qu.  49. 

(n)    Bro.  Tenures,  pi.  33,  82.     Extingiiishm.  31.      Hughes' Writs,  144,  145. 

(o)   1  Roll.  Abr.  678.   Winch,  80.   Cro.  Eliz.  564.   Anon.  Ow,  32. 

(  p)  Bro.  Avowry,  pi.  139.  (g)   1  Leon.  61. 


OF  DOWER  AFTER   ASSIGNMENT.  159 

tagc  of  such  a  condition;  contrary  where  the  condition  wm  conceived  in 

words  of  re-entry. 

As  a  woman  who  is  endowed  of  a  manor  in  dominua  pro  trmpwt, 
she,  like  any  other  person  haviiij;  a   jjarticular  estate,  niav  i^rani . 
and  if  such  copies  pursue  tl»e  custom,  they  will  he  hiiidinn  upon  i;. 
sons  entitled  to  the  inheritance;   for  the  c(»pyholder  is  in  by  the  cusluin 
and  does  not  derive  his  estate  out  of  the  lurfl's  estate' only. (r) 

•It  is  said  hy  Fil/.herl)ert  that  if  a  tenant  of  the  manor  ..  , 
whereof  she  is  endowed  dies  without  heirs,  she  shall  have  a  ^  '*°  J 
writ  of  escheat,(.9)  On  the  contrary  it  is  stated  by  Perkins,  that, «« if 
there  be  lord  and  tenant  by  fealty  and  twelve  pence  rent,  and  the  lord 
take  a  wife,and  dieth,  and  his  wife  is  endowed  of  the  third  jiarl  of  the  rent, 
and  the  tenant  dieth  without  heir,  so  as  the  tenancy  doth  escheat,  in  this 
case  the  wife  shall  not  !)e  endowed  of  the  tenancy,  notwithstanding  that 
it  come  in  lieu  of  the  seij:;nory;  because  it  was  not  in  the  po-isession  and 
seisin  of  the  husband;  but  she  shall  retain  the  rent  which  was  a^i^ncd 
unto  her  in  Dower  as  a  rent-seek,  and  shall  distrain  of  conimon  ri^ht.(/} 

These  pro|)ositions  are  probably  reconcileable.  The  observation  of 
Fitzherbert  that  a  tenant  in  Dower  of  the  seignory  shall  have  a  writ  ofc** 
cheat,  assumes  that  she  is  endowed  of  the  entire  scignory,  ywa  seignory, 
and  being  dominus  pro  tempore^  must,  like  any  other  tenant  for  life, 
have  those  rights  and  remedies  which  are  incident  to  the  enjoyment  of 
the  seignory.  The  case  stated  by  Perkins  merely  supposes  the  wife  to 
he  endowed  of  the  third  part  of  the  rent  as  parcel  of  the  seignttry,  and  as 
a  substantive  hereditament,  while  the  seignory  itself  remains  in  the 
heir.(?0  It  may,  however,  be  doubted  whether  the  law  is  correctly 
stated  in  saying  that  the  rent  shall  continue  as  a  rent-seek,  ,  ^^  , 
since  that  rent  is  determined  "by  way  of  collateral  limitation  ^  J 

and  there  does  not  seem  any  |)retenccto  charge  the  heir  claiming  by  es- 
cheat with  a  rent  issuing  out  of  the  tenancy. (y) 

It  has  been  held  that  if  a  feme  is  enilowed  of  a  third  part  of  a  manor 
to  which  franchises  are  appemlant,  she  shall  not  have  the  third  part  of 
the  franchises,  lor  these  are  not  divisible:  otherwise  if  she  has  the  whole 
manor  in  Dovver.(?f^) 

If  a  woman  is  endowed  of  a  manor,  eo  nttmine,  to  which  common  is 
appendant,  she  shall  have  common  aj)pendant  to  her  third  part;  but  it  is 
said  that  if  she  is  endowed  of  two  acres  of  lanil,  parcel  of  the  manor,  in 
allowance  of  all  the  manor,  she  shall  not  have  common  appendant  unto 
these  two  acres;  for  during  the  time  llii-y  are  in  |)ossession  of  tlic  wo- 
man  they  are  not  parcel  of  the  nuinor,  and  the  common  is  appendant 
unto  the  7nanor.{x) 


fr)  4  Co.  23.   Co.  Litt.  58,  b.     But  she  must  l)0  endowed  »i)ecifically  of  iho  iD«oor.naa»> 

ing  it.     Brook's  case,  Gouldsb.  37. 

(s)  Fitzli.  N.  H.  Ill,  (M.) 

(0   Perk.  sec.  323,  (cites  i:.  33  E.  3.  137.)  .... 

(h)  Aii.l  sec  Hrooke's  rase,  (Joui.lsl).  37.  that  in  order  to  enable  adowVM  to  glBBt  CopiM 
she  must  lie  endowed  specifically  of  the  manor,  naming  it. 

((•)   '"^ec  p.   lt>3,  suiuii. 

(to)    Iko.  Dow.  pi.  10"-,  but  see  Cro.  Joe.  fi'.Ml,  rril. 

(  r)   Perk.  sec.  311.    It  seems  that  u  woman  shall  have  a  writ  of  Dower  of  w  J- 

ant  or  appurtenant  to  the  land  which  slie  hold*  in   Dower  if  .he  m  deforced  !->. 

Uses    371.     And  such  appendants  need  not  be  siHicitically  demanded  in  ll»e  *»...  ...   -..uh 


160  PARE  ON  DOWER. 

When  a  rent  is  granted  to  a  widow  out  of  lands  of  which  she  is  dow- 
able,  in  lieu  of  her  Dower,  the  law  construes  this  to  be  a  rent-charge,  and 
she  may  distrain  of  common  right,  (y) 

*T?o  1  *W'e  have  already  seen  that  a  woman  entitled  to  Dower 
L  -•  takes  subject  to  all  incumbrances  and  charges  created  by  the 

husband  previous  to  the  marriage.  And  as  to  such  of  these  charges  as 
are  in  their  nature  redeemable;  her  interest  in  the  land  confers  on  her 
the  right  of  exercising  the  privilege  of  redemption.  This  point  is  par- 
ticularly applicable  to  mortgages  for  years, — for  as  to  mortgages  in  fee, 
the  question  cannot  arise,  a  woman  not  being  dowable  of  a  mere  equita- 
ble estate,  as  we  have  already  seen, (2)  It  is  her  legal  interest  in  the  re- 
version expectant  upon  the  mortgage  term,  which,  in  this  instance,  car- 
ries with  it,  according  to  the  known  rules  of  courts  of  equity, an  equivalent 
interest  in  the  equity  of  redemption,  and  the  consequent  right  of  discharg- 
ing the  incumbrance,  or  enjoying  subject  to  that  incumbrance,  upon  the 
same  footing  as  any  other  tenant  for  life.  Thus  in  Palmes  v,  Danby(a) 
(which  was  the  case  of  a  mortgage  for  years,  though  that  fact  is  not 
stated  in  the  report)(6)  one  question  was  whether  a  dowress  had  a  right 
to  redeem.  And  the  Lord  Keeper  declared  his  opinion  to  be  that  she 
had,  paying  her  proportion  of  the  mortgage  money,  and  to  hold  over  for 
the  rest;  and  he  distinguished  it  from  Lady  Radnor's  case,  because  there 
it  was  a  satisfied  term,  and  the  husband  (he  observed)  had  a  power  to  bar 
her  by  assigning  it  over;  but  here  it  was  only  a  mortgage,  and  against 
the  heir. 

r  *Qp;i  1  Where  the  wife  has  joined  in  a  fine,  on  a  mortgage  *for 
L  ^  years  made  by  the  husband   subsequent  to  the  marriage,  as 

she  continues  dowable  of  the  reversion, (c)  (unless  indeed  the  uses  of  the 
fine  were  declared,  subject  to  the  mortgage,  so  as  to  prevent  Dower), 
she  is  in  the  same  situation  as  if  the  mortgage  had  been  made  before 
marriage,  and  has  the  same  right  of  redemption. 

But  where  the  mortgage  is  in  fee,  the  fine  operates  as  an  absolute  ex- 
tinguishment ^of  her  title  of  Dower,  for  no  new  title  arises  by  reason  of 
any  legal  reversion;  and  she  can  no  more  redeem  the  mortgage  in  that 
case,  than  if  it  had  been  made  before  marriage.  It  seem.s,  however,  even 
in  this  case,  that  a  wife  may  be  let  into  her  Dower  in  equity,  if  she  is 
included  by  name  in  the  proviso  for  redemption,  and  the  transaction 
does  not  afford  evidence  to  a  court  of  equity  of  an  intention  to  settle  the 
equity  of  redemption  upon  her.  The  case  from  which  this  proposition 
is  drawn  has  been  already  stated. (rf) 

A  dowress,  like  an  heir  or  devisee,  has  of  course  a  right  to  have  the 
personal  estate  of  her  husband,  as  far  as  it  will  go,  applied  in  discharge 
of  mortgages,  and  other  debts  contracted  by  the  husband,  which  are 
charges  upon  the  land  which  she  holds  in  Dower.  And  even  where 
the  personal  estate  is  insufficient  to  discharge  the  debt,  it  would  seem 
that  in  some  cases,  if  not  in  all,  she  has  the  privilege  of  having  the  lands 
which  remain  in  the  heir  charged  therewith,  in  exoneration  of  the  land 

she  claims  the  land  to  which  they  are  appendant,  but  are  included  in  the  land  eumpertinentiii. 
Arg.  Pruetl  v.  Drake.     Cro.  Car.  .301.  ^ 

{y)  Noy,  155.     Keilw.  104,  a.  Perk.  sec.  323. 

(z)  See  p.  137,  supra.  (a)   Pr.  Ch.  137. 

(6)  Per  Sir  J.  Jekyllin  Banks  v.  Sutton,  2  P.  W.  716. 

(c)   See  p.  196,  supra.  (d)  See  p.  208,  supra. 


OF  DOWER  AFTER  ASSIGNMENT.  ICl 

assip;necl  *to  her  in  Do\ver.(e)  Thus  if  the  husband  before  ,  »__ 
marriaf^e  becomes  indebted  to  the  crown,  and  afterwards  his  ^  *'  J 
wife  is  endowed,  and  the  sberill'distrains  on  her  Uower  for  the  husband's 
debt,  she  may  have  a  writ  direct(,'d  to  the  sheriff,  commanding  that  he  do 
not  distraii\  the  wife  for  the  kini;'s  debt;  and  she  may  have  iurh  writ 
out  of  the  Chancery  directed  to  the  TnMsurer  and  Harons  of  the  Kx- 
chcquer,  comniaiulintf  them  that  tliey  in(|uire  thereof,  and  if  they  tind 
tlic  same,  tbat  tliey  surcease  and  discliar^e  tbe  wife,  with  a  proviso  in 
the  writ,  Provided  thai  those  debts  be  levied  upon  the  executor  or  heir 
of  the  aforesaid  ./?.,  and  upon  the  tenants  of  the  lands  which  were  hity 
and.  which  of  right  ought  to  be  charged  therewith^  as  is  just .  There 
is  anoliicr  form  of  writ  in  tbe  rcj^ister  for  tenant  in  Dower,  willi  iJm.'SC 
words  in  the  end  of  the  writ.  Yet  so  long  as  the  heirs  and  executors  of 
the  test  anient  of  him  the  said  ^'2.  have  nut  sujjicirnt  distress  to  render 
to  us  those  debts,  ikc.{f) 

It  has  been  thoutrbt  that  the  wife  shouhl  not  in  any  case  be  di.ftraincd 
for  the  kino;'s  debt,  at  whatever  time  contracted  ;(^)  and  the  opinion  was 
probably  ^founded  on  the  j2;eneral  terms  of  the  common  writ,  ,  mnen  -i 
properly  used  wlicre  tlie  debt  was  contracted  subse(/uent  to  I-  -• 

the  marriage,  and  whicii  is  as  follows:  — 

The  King  to  the  Shcr/JJ]  i)-c. —  JVhercas  according  to  the  law  and 
cnsto/n  (four  rcahn  (f  England,  women  ouf^ht  not  to  be  distrained 
to  pay  the  debts  of  their  husbands  in  the  lands  and  tenements  which 
they  hold  in  IJotvcr  of  the  gift  of  their  husbands,  or  which  arc  of  their 
own  inheritance,  or  ivhich  they  purchased  to  themselves,  and  you  dis- 
train B.  ivho  was  the  wife  of  A.  in  her  lands  and  tenements  which  are 
holden  in  Dower  of  the  gift  of  the  aforesaid  A.,  and  which  were  also 
of  the  inheritance  rf  her  the  said  Ji.  as  wc  have  received  information 
from  her  cotnplaint:  JVc  commmul  yini,  that  you  do  not  cause  her  the 
said  Ji.  to  be  distrained  in  her  lands  and  tenements  tchich  are  liolden 
in  Dower,  or  which  are  of  her  own  pntpcr  inheritance,  or  of  the  pur- 
chase of  her  the  said  D.  to  pay  the  debt  of  the  said  A.  some  lime  her 
husband,  against  the  law  and  custom  aforesaid;  and  the  distress 
which,  ^c.  cause  to  be  delivered  to  her,  ^c.      fHtness, 4"C-(''0 

Chief  liaron  Gilbert,  after  adverting  to  the  language  of  the  different 
writs,  ])uls  the  point  upon  its  true  ground,  when  he  observes,  that  "  the 
true  distinction  of  these  cases  is,  that  if  the  debt  to  liie  King  be  subse- 
quent *to  the  marriage,  then  the  wife's  Dower  being  a  con-  .  .^^^  , 
tract  for  infcudation,  at  the  very  lime  of  the  marriage,  and  l- 
which  binds  the  lands,  the  assignment  of  Dower  over-reaches  iIjc  charges 

(e)  "  If  the  husband's  goods  be  not  sufi'iricnt  for  piiymrnl  of  hi«  icUt,  the  heir  muat  Jw- 
chargc  Dower  of  the  burden,  &c.  for  he  i-  tlu-  widovv'H  warrant  of  hrr  Dower,  and  ought  to 
follow  for  her  county  court,  court  Icet,  «nd  hundred,  d  c.  Uiat  nho  may  •«•  to  her  houaw.  aoJ 
nurture  other  children."     Woman's  Lawyer.  16aa,  p.  v;89  (cite,  liracton). 

(/•)   F.  N.  13.  150.  (Q).  46.  (G).  tJilb.  r»es.  407— ll-;.       ,.      .      .        .  , 

I'o-)  Do^i  the  very  name,  doth  import  a  freedom  ;  for  the  law  doth  Bi»c  hrr  Iherrwith  ratny 
freedoms,  1-cundum  consuHudiucm  rrjrni  mul.rrr*  v„l„^.  Ac  '[^'•<"t  ^"<  V'"''*-  -V  .'.'-. ■ 
eiis  &c  And  tenant  in  Dower  shall  not  be  distramcd  lor  the  dibt  duo  to  the  kin^-  Ij  ihe 
hu«band  in  his  lile-tinio  in  the  lands  which  nho  held  m  Dower.  And  other  pntdrRc^  ah* 
hath,  of  all  which  Ockham  yiehls  this  reason.  "  Ih,i.jus  />'";'■'"•;;; '''",'' ^^'^'Ta^.^.'^'^I 
est."  Co.  Litt.  :31,  a.  (cites  d.  H  H.  3.  n.  17.  Kei;.8t.  1 1-',  HJ.  Ockham.  f.  40).  »mi 
see  2  Eq.  Ab.  382,  n. 


(A)  F.  N.  13.  150,  (Q). 

Vol.  XL-3  P 


1€2  PARK  ON  DOWER. 

by  debt  of  the  King;  for  if  the  husband  could  not  alien,  during  the  co- 
verture, so  as  to  defeat  the  wife's  infeudation,  he  could  not  make  any- 
other  charges  that  would  impeach  it;  and  therefore,  the  wife  there  may 
have  a  general  prohibition,  since  the  King's  debt  does  not  affect  the 
lands;  but  if  the  King's  debt  was  before  the  marriage,  then  the  contract 
for  infeudation  was  subject  to  the  burthen  of  the  King's  debt;  and  there- 
fore, there  she  can  only  have  a  special  prohibition,  with  an  ita  quod  that 
there  are  lands  in  the  hands  of  the  heir,  or  chattels  in  the  hands  of  the 
executor,  to  answer  the  King's  debts;  for  if  there  be  not,  then  the  King 
may  levy  the  whole  debt  upon  the  dowress,  and  she  must  come  upon  the 
feoffees  of  her  husband,  who  are  equally  liable  to  contribution;  for  the 
husband,  by  subsequent  alienation,  cannot  put  such  a  disadvantage  upon 
'the  crown,  that  has  given  him  credit,  as  to  force  the  crown  to  bring  in 
every  alienee  in  order  to  be  paid  by  them;  but  the  King  has  a  right  to 
seise  the  lands  in  whosesoever  hands  he  finds  them,  if  such  person  comes 
in  subsequent  to  such  charges. "(?) 

If  the  husband  sows  the  ground,  and  dies,  and  the  heir  assigns  the 
land  sown  to  the  wife  for  her  Dower,  she  shall  have  the  corn,  and  not 
^„f.^  -,  the  executors  of  the  *husband.(/t^)  This  is  an  instance  of 
[  355  J  ^j^g  peculiar  favor  shown  to  the  tenant  in  Dower  above  any 
other  tenant  for  life,  who  are  never  put  into  possession  of  lands  which 
are  sown. 

It  was  owing  to  this  reason,  that  at  the  common  law  a  tenant  in  Dower 
could  not  devise  corn  which  she  had  sown,  nor  did  it  go  to  her  execu- 
tors, but  became  the  property  of  the  person  in  reversion;  but  now,  by 
the  statute  of  Merton,  20  Hen.  III.  c.  2,  the  representatives  of  a  dowress, 
like  those  of  any  other  tenant  for  life,  will  be  entitled  to  emblements, 
and  she  may  devise  the  emblements.  (/)  And  if  tenant  in  Dower  sows 
the  land,  and  takes  baron,  who  makes  his  executor,  and  dies,  before  se- 
verance of  the  corn,  the  feme  shall  have  the  crop,  and  not  the  executor 
of  the  baron.  Otherwise,  if  the  baron  sows  the  land,  and  dies  before  se- 
verance; there  the  executor  shall  have  the  emblements;  and  the  reason 
is  said  to  be,  that  he  who  did  the  labour  and  costs  of  the  emblements 
shall  have  them.(m) 

"  If  two  tenants  in  common  be  of  land  in  fee,  and  on6  of  them  taketh 
a  wife,  and  dieth,  and  his  wife  is  endowed,  and  she  and  the  other  tenant 
in  common  sow  the  land,  and  afterward  she  maketh  her  executors  and 
dieth,  the  corn  not  being  severed,  her  executors  shall  have  the  corn  in 
common  with  him  who  held  in  common  with  the  tenant  in  Dower."(;z) 
^  *If  a  dowress  leases  the  land  which  she  has  in  Dower  for 

[  356  J  yggjj,g^  j^i^^j  ^Ijgg^  j-jgj,  executors  shall  have  the  rent  which  was 
in  arrear  at  her  death,  and  not  the  heir,  for  he  is  a  stranger  to  the  lease, 
and  by  her  death  the  lease  is  void.(o) 

If  the  wife  be  endowed  of  lands,  of  which  the  husband  was  tenant  in 
common,  she  must  stock  the  land  proportionally  with  the  other  tenants 
in  common ;(/?)  and  it  is  apprehended  she  must  contribute  towards  the 

(?)  Gilb.  Dow.  411. 

ik)  2  Inst.  81.     Fisher  v.  Forbes,  9  Vin.  373,  pi.  82  ;  2  Eq.  Ab.  392 ;  Dy.  316.  a. 
(/)  See  2  Inst.  81  ;  Keilw.  125  ;  2  Danv.  766,  pi.  27;  Perk.  sec.  522 ;  Co.  Litt.  55,  b.  n. 
(3.)  Bro.  Emblements,  pi.  22  (cites  Fitzh.  Devise.  25). 

(m)  Bro.  Emblem,  pi.  26  (cites  Lib.  Fundamenti  Legum,  f.  72). 

\n)  Perk.  sec.  523.  (o)  Bro.  Rents,  pi.  16;  Bro.  Leases,  pi.  19. 

\p)  Gilb.  Dow.  397. 


OF  DOWEn  AFTER   ASSIGNMENT  163 

repairs.  (<7)  But  wliotlier  tlio  reversioner  can  maintain  a  hill  in  equity 
to  cot7ipei  a  (lowress  who  h:i.s  hud  hnuljj  specifically  assigned  to  her,  to 
repair,  is  probably  iloublfiil.(r) 

It  seems  too,  that  a  woman  who  is  endowed  of  the  third  part  of  the 
profits  of  an  ofticc,  shall  contribiitc  a  ihird  j)arl  of  the  charge  of  the 
oflicc;  as  in  the  case  of  a  bailiwick. (,v) 

We  have  already  seen  that  she  must  contribute  to  rent  »cr\-ire<i.(/) 
So  also  it  is  said  that  if  tlicre  be  ^nuidfatlit-r,  father,  and  hon,  and  ihc 
grandfather  dies,  and  the  father  enters,  and  as.si^ii.s  Dower  to  the  grind- 
mother,  *who  afterwards  surrenders  to  him,  payiuf^  ten  ,  ,„-_  , 
pounds  per  annum,  3inf\  the  father  dieth,  and  the  wife  is  •■  ' 

endowed  of  the  land,  she  shall  pay  to  the  grandmother  so  much  of  the 
rent  as  belongs  to  her  proportion  in  l)ower.(j/) 

The  estate  of  the  dowress  being  for  her  life  only,  is,  generally  speak- 
ing, subject  to  the  .^atne  restrictions  as  any  other  estate  for  life.  Thus 
slie  cannot  lawfully  commit  waste;(f)  and  it  is  apprehended,  that  she  is 
punishable  not  only  iov  vtilimlari/y  but  also  for /;<*;v/i t.v.viir  wa.ste,  though 
it  escaped  the  research  of  Mr.  Ilargrave,  as  it  has  that  of  the  author  of 
this  treatise,  to  find  any  authority  to  that  eflect. (tf>)  Hut  it  may  be 
presumed,  that  the  statute  G  Ann.  cap.  31,  sect.  6,  excmi)tinga///;eMon* 
from  actions  for  accidental  fire  in  any  house,  except  in  the  case  of  .special 
agreements  between  landlords  and  tenants,  would  be  construed  to  extend 
to  a  tenant  in  Dower. 

If  tenant  in  Dower  cut  down  timber-trees,  they  are  the  property  of 
the  heir  or  reversioner,  and  he  may  take  them;(.r)  but  if  a  house  falls 
down  per  vim  voili,  in  the  time  of  tenant  in  Dower,  she  has  a  .sjjecial 
property  in  the  timber  to  rebuild  the  like  house  for  her  habitation,  and  if 
.she  fells  a  tree  for  reparation,  she  has  a  special  proj)erty  to  that  purj)o»c  in 
it,  but  she  cannot  give  or  sell  the  tree  so  felled. (y) 

*So  also  if  she  dig  unopened  mines,  it  will  be   waste;  but  ,     •350     "| 
she  may  woik  mines  or  coal-j)its  which  were  opened   in  the  ^ 
husband's  time.(z) 

But  if  tenant  in  Dower  takes  husband,  who  commits  waste  and  dies, 
the  feme  shall  not  be  punishable  for  this.(r/) 

But  she  shall  answer  for  waste  done  by  a  stranger,  for  he  in  the  re- 
version cannot  have  any  remedy  but  against  the  tenant,  and  the  tenant 
has  remedy  over  against  the  wrong  doer,  and  shall  recover  all  in  dam- 
ages against  him,  and  by  this  means  the  loss  shall  light  upon  the  wrong 

{n)  Of  the  writ  •  De  rrparntionp  faricndn,'  l>clwccn  tenanU  in  common,  Ac.  8««  KiUh. 
N.  U.  ~'Jo;  and  sec  I  Voni.  liy   luiilliliy,  -IK.  n. 

()•)  III  Wood  V.  Gayiion,  .^ml>l.  :J'J(>,  a  l«ill  to  com|>«<l  a  tenant  for  lif«  to  rrpau,  or  lo 
have  a  receiver  appointed  witli  directions  to  repair,  wa*  di«inm«cd  ai  ItcinK'  without  |>rM«d«nt. 
Hut  it  seems  tliat  in  takinc;  accounts,  a  tenant  for  lifo.  ihoutfli  witliout  imix-actmicnl  of  «»»(« 
may  lie  charged  with  sums  for  the  repairs  of  hoUBca  on  tlic  c«Utc.  •**««  lUrlcnche  ».  Pow- 
let,''2  Atk.  :{s:j. 

(,,)   IVrk.  8ec.  :U2.  (0   P-  345.  •uprt. 

(m)   Hui^hes'  Writs,  173  (cites  M.  IT.  K.  3.  13.) 

Iv)  Anon.  Ow.  :{(;.  (w)  <^'o.  Litl.  67,  a.  n.  (1.) 

(x)  Com.  Die  Uicns.  H.;  Al.  SI;  4  Co.  62.6. 

\y)    1 1  Co.  82  ;  Cro.  El.  78t  ;  .-)  Co.   13.  A.;  and  .cc  «  P.  U  .  212.  for  qOilificaUon. 

(r)  (Jill).  Dow.  :59l,  1    taunt.  Ill;  and  see  p.  117.  25'J.  »upra. 

(a)  15  H.  3.  I'ilzh.  Waste.  133.  Hut  contra  xaid  to  U>  held  in  Atkini  t.  (flortr,  M8. 
note  by  Serjeant  Hill  in  'Z-i,  Vui.  Abr.41G,  Line.  Inn  Library. 


164  PARK  ON  DOWER. 

doer.  But  if  the  waste  is  done  by  the  enemies  of  the  King,  the  tenant 
shall  not  be  answerable,  for  she  has  no  remedy  over  against  them.  (6) 

It  is  said  that  if  a  woman  be  endowed  of  a  manor,  and  a  copyholder 
thereof  commits  waste,  an  action  of  waste  lies  against  the  tenant  in 
Dower,  (c) 

The  legal  remedy  against  a  dowress  committing  waste,  is  either  by 
an  action  of  waste,  properly  so  called,  or  an  action  on  the  case  in  the 
nature  of  waste.(c^) 

Even  before  the  statute  of  Gloucester,  an  action  lay  by  the  heir  against 
^  the   tenant   in    Dower   at   common    *law,   for   committing 

L  '^^'^  J  waste ;(e)  and  if  the  heir  was  apprehensive  that  the  dow- 
ress intended  to  commit  waste,  he  might,  before  any  waste  done,  have  a 
prohibition  directed  to  the  sheriff  that  he  should  not  permit  her  to  do 
waste. (/)  And  she  was  punishable  by  attachment  thereupon,  if  after 
that  she  did  waste. (^) 

But  if  the  heir  granted  over  the  reversion,  his  assignee  had  no  remedy 
for  waste  done  by  the  tenant  in  Dower  at  common  law,  by  reason  that 
the  privity  was  destroyed,  but  this  was  helped  by  the  statute  of  Glou- 
cester, 6  E.  I.  cap.  5.{h) 

And  in  respect  of  the  privity  between  the  heir  and  the  tenant  in 
Dower,  the  heir  shall  bring  his  action  of  waste  against  her  notwithstand- 
ing she  grants  over  her  estate,  and  as  well  for  waste  committed  by  her 
as  her  grantee,  and  he  shall  recover  the  place  wasted  against  the  assignee 
in  that  action,  and  damages  against  the  tenant  in  Dower,  who  shall  take 

^  1  ^^^  remedy  over.(z)     But  as  tenant  in  Dower  can  hold  *of 

L  "^  ^  J  none  but  the  heir,  and  his  heirs  by  descent,  the  assignee  of 
the  heir  shall  not  have  his  action  of  waste  against  the  tenant  in  Dower 
who  has  granted  over  her  estate,  but  against  her  assignee,  for  by  the 
grant  of  the  reversion  the  privity  is  destroyed. (A;)  But  if  the  feoffee  of 
the  baron  endows  the  feme,  and  she  assigns  over  her  estate,  waste  lies 
for  him  against  the  feme;  for  (says  the  book,)  the  plaintiff  shall  not  sup- 
pose in  his  writ  that  she  held  in  i)ower  of  him  ex  assignatione,  but  only 
that  she  held  in  Dower  of  his  heritage.(/) 

If  tenant  in  Dower  leases  for  her  life  to  him  in  reversion  within  age. 


(6)  2  Inst.  303. 

(c)  2  Inst.  303  (cites  32  E.  3,  Wast.  104.J 

((/)  But  it  seems  case  does  not  lie  for  permissive  waste.  Gibson  v.  Wells,  1  New 
Rep.  290. 

(e)  Bro.  Waste,  139  (cites  Dr.  and  Stud.  1,  2.)  pi.  88  (cites  21  H.  6.  38.)  2  Inst.  303, 
145,  where  see  the  reason  why  prohibition  lay  at  common  law  against  tenant  in  dower,  and 
not  against  tenant  by  the  curtesy.     But  sec  lb.  299,  301. 

(/)  Co.  Litt.  53.  L;  2  Inst.  299.  300,  145. 

ig)  F.  N.  B.  55.  (C.) 

(A)  2  Inst.  301;  11  Co.  83,  b.;  Co.  Litt.  3 16,  a.  53,  b.;  3  Co.  23,  h. 

\i)  F.  N.  B,  55.  (E.)  12  H.  4.  14;  30  E.  3.  16,  b.;  38  E.  3,  23  ;  2  Inst.  301;  3  Co.  23. 
b.\  9  Co.  142.  a.,  Anon.  Brownl.  239  ;  Bro.  Waste,  pi.  76  (cites  38  E.  3,  23.)  "  And  the 
reason  wherefore  at  common  law  the  action  of  waste  did  lie  against  the  tenant  in  dower,  or 
tenant  by  the  curtesy,  albeit  they  had  assigned  over  their  estates,  was,  because  no  action  of 
waste  by  the  common  law  lay  against  the  assignee  for  waste  done  after  the  assignment ; 
therefore  the  action  of  necessity  did  for  such  waste  (after  the  assignment.)  lie  against  the 
tenant  by  the  curtesy,  or  tenant  in  dower,  which  law  continues  to  this  day."     2  Inst.  300. 

{k)  Co.  Litt.  54,  a.  316,  a.;  2  Inst-  301;  3  Co.  23,  b.;  F.  N.  B.  56  (E.  F.) 

(0  F.  N.  B.  56  (E)  n.  (6)  (cites  38  E.  2.)  See  also  F.  N.  B.  55,  (E.)  n.  (a ;)  and 
Dy.  206,  b. 


OF  DOWER  AFTER  ASSIGNMENT.  165 

who  never  takes  the  profits,  l)ut  at  full  age  disagrees  to  the  lease,  he  miy 
have  an  action  of  waste  fur  waste  committed  in  tlie  mean  lime.(rn) 

The  action  of  waste  is  now  become  nearly  obsolete,  bavins  given  way 
to  the  more  expeditious  and  eligible  remedy  of  an  action  on  the  case  in 
the  nature  of  waste. 

An  injunction  may  of  course  be  obtained  in  equity  against  a  tenant 
in  Dower  committing  waste,  upon  the  same  grounds  as  againul  any  other 
tenant  for  life. 

]Jy  the  common  law,  a  tenant  in  Dower  was  under  the  same  restraints 
respecting  alienation  as  other  "tenants  for  life;  and  if  she 
aliened  in  fee,  or  for  tiie  life  of  another,  or  in  tail,  the  heir  ^  ^^^  J 
might  after  her  death  recover  the  land  by  a  writ  called  in  the  books  a 
writ  of  entry  ad  cotnmunem  legcm,{n)  to  distinguish  it  from  the  writ 
in  casu  proviso,  to  be  presently  noticed.  But  where  tenant  in  Dower 
aliened  by  feoffment,  and  the  feoffee  (lic<l  seised,  whereby  the  entry  of 
the  reversioner  was  tolled,  he  could  have  no  writ  of  entry  ad  comniu- 
ncni  legem  till  after  the  death  of  the  dowress,  ]iut  by  the  statute  of 
Gloucester,  6  Ed.  I.  c.  7,  it  is  enacted,  '•  that  if  a  woman  sell  or  give  in 
fee  or  for  term  of  life  [of  another]  the  land  that  she  holdelh  in  Dower, 
the  heir,  or  other  to  whom  the  land  ought  to  revert  after  the  deaih  of 
such  a  woman,  shall  have  j)resent  recovery  to  demand  the  land  by  a 
writ  of  entry  made  thereof  in  the  chancer3'."(o) 

Notwithstanding  this  statute,  if  tenant  in  Dower  aliened  in  fee  with 
warranty,  anil  died,  the  warranty  descending  uj)on  him  in  reversion 
barred  him;  for  the  statute  of  (lloucester  did  not  j)rovide  against  collate- 
ral warranty  of  tenant  in  Dower.  Dul  by  the  statute  11  Hen.  \'II.  c. 
20,  alienations,  releases,  and  confirmations,  with  warrantv,  by  a  tenant 
in  Dower,  either  alone,  or  with  a  second  husband,  except  for  the  term 
of  her  own  life,  are  made  a  forfeiture  of  her  estate,  and  the  same  arc  de- 
clared void.(/?)  *If,  however,  the  alienation  is  made  during  ,  ^nro  i 
coverture,  the  statute  saves  to  her  the  right  of  re-entry  upon  ^  J 

the  heir  or  reversioner  after  the  death  of  her  husband. 

It  is  said  to  have  been  adjuilged,  that  if  a  woman  who  has  title  of 
Dower,  before  she  is  endowed,  enters,  and  levies  a  fine,  it  is  wiiliin  the 
forfeiture  of  the  statute,  although  she  is  not  tenant  in  Dower.(y) 

Wc  have  already  seen  that  a  dowress  is  not  ali'ected  by  any  incum- 
brances or  charges  created  by  the  husband  subsetpient  to  the  attarhmcnt 
of  the  title  of  Dower.  Therefore,  "  if  a  woman  have  lands  which  she 
holdeth  in  Dower,  or  of  joint  purchase  with  her  husband,  or  of  her  own 
inheritance,  if  the  sheriff  have  |)rocess  out  of  the  Kxclu'ipjer  to  levy  the 
husband's  del)ts,  which  he  oweth  unto  the  King,  or  if  the  sherifl"  have 
process  out  of  another  court  to  levy  debts  due  by  her  husband  to  another 
person  if  the  sherilf  will  distrain  in  the  laiuls  which  the  wife  holdeth, 
&c.  the  wife  shall  have  a  writ  unto  the  sherilf  that  he  do  not  distrain 
the  wife,  who  holdelh  such  lands,  for  the  debt  of  the  husband.(r) 

(m)  30  E.  3.  ir. ;  F.  N.  B.  ^y^^  (E.)  n.  (<i.)      (n)  F.  N.  H.  207. 

(o)  2  Inst.  309  ;  ami  see  i^liop.  T.  1'.::.,  US  ;  F.  N.  B.  205  (M.)  »her«  Me  ihe  form  ol 
the  writ    which  is  called  the  Writ  of  Entry  in  ctitu  f)rovi.io. 

(p)  And  see  3'-;  Hen.  VIII.  c.  3G,  sec.  2;  ("o.  LilL  365,/,;  I.in.  •<v,  725.  7?6.  737; 
Shep.  T.  194,  l.-i. 

(a)   Per  Rhodes.  .1.  in  Barker  v.  Tojior,  2  Leon.  l6S. 

(r)   FN    B  4tJ ;  Gilb.  Uses,  407.     See  the  form  of  the  writ,  •upra,  p.  U.'»3. 

^      ■     ■  2  P  2 


1 


166  PARK  ON  DOWER. 


J-    *363    ]  ^CHAPTER  XVII. 

Of  the  circumstances  under  which  a  dowress  shall,  or  shall  not  have 
the  benefit  of  an  attendant  term,  and  of  the  protection  afforded 
to  PURCHASERS  by  assigJiments  of  terms. 

It  has  been  already  shown  that  upon  a  recovery  of  Dower  at  law, 
where  there  is  an  existing  term  of  years,  prior  in  point  of  title  to  the 
Dower,  judgment  is  given  of  the  reversion  and  rent,  with  an  immediate 
execution,  li  there  be  any  rent  reserved  upon  the  term;  and  of  the  re- 
version, with  a  cesset  executio  during  the  term,  if  there  be  no  rent  re- 
served thereon.(a)  At  law,  every  existing  term  is  necessarily  supposed 
so  be  a  term  in  gross,  and  no  inquiry  can  take  place  there  as  to  the  pur- 
poses for  which  the  term  was  created,  or  the  extent  to  which  the  owner 
of  the  reversion  may  be  beneficially  interested  therein;  but  it  having 
been  once  recognised  and  adopted  as  a  principle  by  courts  of  equity, 
that  a  term  which  at  law  is  a  term  in  gross,  may  in  equity,  by  express 
declaration,  or  even  by  implication,  become  attendant  upon  the  rever- 
sion, that  is  to  say,  be  held  in  trust,  not  for  the  person  and  his  personal 
representatives,  in  whom  the  beneficial  ownership  of  the  term  and  the  in- 
^  ,  heritance  should    first  unite,    but  for  that  person,  and  all 

t  '^^'^  J  others  who  from  time  to  *time  should  become  interested  in 
the  inheritance,  to  the  exclusion  of  his  or  their  personal  representatives, 
it  necessarily  became  a  question,  whether  a  dowress  who  had  obtained 
judgment  at  law  of  the  reversion,  with  either  an  immediate  or  a  stayed 
execution,  should  not  in  equity  be,  in  the  first  case,  let  into  possession 
by  virtue  of  the  trust  which  was  then  become  executed  for  her  benefit 
and,  in  the  second  case,  be  relieved  from  the  effects  of  the  stay  of  exe- 
cution at  law,  and  assisted  to  obtain  the  immediate  benefit  of  her  legal 
title.  According  to  the  doctrines  of  courts  of  equity,  <'  every  descrip- 
tion of  ownership  (as  it  was  observed  by  the  late  Master  of  the  Rolls  in 
Maundrell  v.  Maundrell,)(Z>)  shall  in  its  order,  degree,  and  proportion, 
have  a  use  in  the  term,  commensurate  with  the  interest  existing  in  the 
inheritance.  Therefore,  when  Dower  arises,  the  term  in  a  proportion 
is  just  as  much  attendant  upon  that  interest,  growing  out  of  the  inherit- 
ance, as  before  it  was  attendant  upon  the  inheritance  during  the  hus- 
band's life." 

With  the  exceptions  which  will  be  hereafter  noticed,  in  favour  of 
purchasers,  it  is  now  distinctly  settled  that  courts  of  equity  will  relieve 
the  dowress  in  the  case  of  satisfied  terms,  although  several  cases  have  at 
^  diflferent  times   been  decided  to  the  contrary ;(c)   and  the 

L  ^^^  J  judges  were  for  sometime  much  inclined  *to  distinguish  be- 
tween the  cases  of  a  dowress,  and  a  jointress;  the  latter  coming  in  by 
the  act  of  the  party,  while  the  former  was  in  in  the  post,  and  by  opera- 
tion of  law;  and  therefore,  as  they  thought,  not  entitled  to  the  benefit  of 


(a)  See  p.  294,  300,  supra.  {h)  1  Ves.  578, 

(c)  Pheasant  v.  Pheasant  (1671,)  cited  1  Vern.  358,  341;  but  see  the  report,  3  Ch.  Rep. 
69  ;  and  2  Freem.  212  ;  Tiffin  v.  Tiffin  (1681,)  2  Freem.  66  ;  Radnor  v.  Rotheram  (1696,) 
Pr.  Ch.  65;  2  Freem.  211;  Brown  v.  Gibbs,  Pr.  Ch.  97.  2  Freem.  233;  Williams  v.  Wray, 
1  P.  W.  137. 


OF  ATTENDANT  TERMS  AS  TO  DOWEH.  167 

the  attendant  term.  Tlils  objection  is,  liowever,  now  considered  ib  of 
no  validity ;(^/)  nor  does  any  distinction  appear  to  be  admitted  »b  to 
equitable  relief,  between  the  case  of  a  dowrcss,  who  has  bad  execution 
of  her  judgment  at  law,  and  so  become  to  all  intents  and  purposes  tenant 
for  life  of  the  reversion,  and  entitled  to  be  let  into  possession  as  acainft 
the  trustee  of  the  term,  and  the  case  of  a  dowress  who  has  re<ijverctl 
judgment  with  a  stay  of  execution, (e)  and  conse(juently  cannot  <-ntitlc 
herself  even  to  the  ownershij)  of  the  reversion;  aitbougb  it  n»ii;bi  cer- 
tainly have  been  open  to  contend  that  the  coses  afforded  a  distinction; 
since  in  the  former  instance,  the  dowress  merely  comes  into  ecpjiiy  lo 
have  the  trust  executed  for  her  benefit,  as  the  complete  owikt  pro  tem- 
pore of  the  reversion,  by  virtue  of  her  recovery  at  law;  while  in  the  lat- 
ter case,  she  comes  to  have  a  title  made  good  in  equity,  which  is  not 
available  at  law,  during  the  existence  of  the  term,  or  as  it  ^  ,^  - 
has  been   elsewhere   *exj)ressed,  to  be  relieved  against  that  ^  -• 

very  judgment  upon  which  slie  founds  her  title. 

The  preceding  observations  su|)pose  the  term  to  be  satisfied,  and  at- 
tendant on  the  inheritance,  either  by  implication,  or  express  declaration; 
but  although  the  term  is  not  satisfied,  yet  if  it  were  created  for  a  par- 
ticular purpose,  as  a  mortgage,  or  for  securing  portions,  &c.  as  equity 
considers  the  termor,  subject  to  the  charge,  as  a  trustee  for  the  owners 
of  the  inheritance,  such  a  term  will  in  equity  no  otherwise  obstruct  the 
enjoyment  of  a  dowress,  than  as  may  be  necessary  for  purposes  of  the 
charge.  Therefore,  if  the  termor  is  in  possession,  the  dowress,  if  she 
has  obtained  execution  at  law,  or  been  relieved  in  ctpiily  against  a  stay 
of  execution,  may,  by  redeeming  the  mortgag(',(/)  or  paying  the  por- 
tions, &c.  entitle  herself  to  the  immeiliate  possession,  and  proceed  auainst 
the  heir  or  reversioner  for  contribution ;(,:g')  or  if  the  termor  is  not  in 
possession,  she  will  be  entitled  to  enter  and  enjoy,  or  receive  the  rents 
and  profits,  subject  to  the  charge. 

The  cases  from  whicli  the  above  propositions  are  to  be  gleaned,  may 
be  shortly  noticed  as  follows. 

In  Snell  v.  Clay(/0  (1095),  tiie  plaintilV,  as  tenant  by  ,  .^^^  , 
the  curtesy,  brought  his  bill  to  be  relieved  ag.iinst  'a  term  '■ 
for  years  that  was  assigned  in  trust  to  attend  the  inheritance,  and  had 
been  setup  by  the  heirs  at  law  in  bar  to  bis  title;  and  it  was  decreed  ac- 
cordingly at  the  Rolls,  with  costs  at  law  and  in  equity;  and  that  the 
term  sliould  not  be  made  use  of  against  him  by  the  heirs  at  law,  and  the 
decree  afterwards  confirmed  upon  3|)pe;d  to  Lord  Keeper  Somers. 

In  Ilitchens  v.  llilcliens,(/)  Samuel  llilchens  made  a  mortgage  for 
five  hundred  years,  and  devised  bis  real  estate  to  his  son  (liles  Ilitchens 
in  tail,  with  remainder  over.     Cilcs  married  the  plaintitV  Silvestra,  who 

(r/)   And  see  Attorney  General  v.  Thruxton.  I  Vcrn.  310.  where  it  w.si  a.lju.t:--'   •'-"  '»- 
inheritance  esiheatiuR,  though  the  KinR  I'v  es.he.U  comet  m  in  vhe  /.o.r.  ytl  hr 
ttie  benefit  of  an  attendant  term.     It  was  saiJ  l.y  Lord  Chanrellor  JelUriw  in  lli  »: 

the  King  was  not  l)arely  in  in  the  [njsi,  l.ut  in  the  per  bIm.  for  the  tcnn  wont  with  tbo  in- 
heritance bv  the  express  hmitation  of  tlie  party.  ,     ,  .       . 

(e)  As  was  tlio  case  in  IJodmin  v.  Vandebcndy,  2  Ch.  Co.  172  (u  remarked  hr  the  re- 
porter,) and  Dudley  v.  Dudley,  Pr.  Ch.  2  t:t.  ^ 

if)   See  p.  350,  supra;  and  see  the  third  resolution  in  Radnor  v.  Rothcmm.  2  F  rrrm.  -U 

Cff)  As  against  the  personal  estate  of  the  inortcnRor.  .iio  id  likcwiw  entuled  to  b«»c  l)>r 
land  exonerated  from  the  mortgage  debt,     t'ee  p.  ;t;'>l.  «upra.  „     ,  . , 

(A)  2  Vern.  3-21.  (•)  2  Vcrn.  103 ;  Pr.  th.  133. 


168  PARK  ON  DOWER. 

after  his  death  recovered  her  Dower  at  law,  but  was  kept  out  of  posses- 
sion by  reason  of  the  mortgage,  upon  which  100/.  was  still  due.  Upon 
a  bill  filed  by  her  against  the  remainder-man,  and  the  executors  of 
Samuel  Hitchens,  to  have  the  benefit  of  her  Dower,  it  was  decreed  that 
she  should  be  let  into  possession  of  her  Dower,  exonerated  from  the 
mortgage  and  that  the  defendants,  the  trustees,  and  executors  of  Samuel 
Hitchens,  should  out  of  the  monies  in  their  hands,  pay  oif  and  discharge 
the  said  mortgage,  and  a  perpetual  injunction  was  awarded  to  stay  any 
action  at  law  that  might  be  brought  against  the  plaintiff  Silvestra  Hitch- 
ens, on  account  of  the  said  mortgage.  (A?)  The  latter  part  of  this  decree 
appears  to  have  proceeded  on  the  ground  that  the  dowress  had  a  right, 
as  against  the  personal  estate  of  Samuel  Hitchens,  to  have  the  lands 
exonerated  from  the  mortgage  debt.(/) 

...  -.       *In  Dudley  v.  Dudley (wi)  (1705),  lands  were  settled   to 

L  -■  the  use  of  trustees  for  ninety-nine  years,  remainder  in  tail, 

and  the  trusts  of  the  term  were  declared  to  be  to  raise  annuities  for  cer- 
tain persons,  and  subject  thereto,  to  permit  the  persons  entitled  to  the 
freehold  to  receive  the  surplus  rents,  and  profits,  and  the  wife  of  the  ten- 
ant in  tail  recovered  Dower  at  law,  with  a  cesset  executio  during  the 
term,  it  was  decreed  in  equity  that  the  dowress  should  have  the  benefit 
of  the  trusts  of  the  term  as  to  a  third  part  of  the  profits  above  the  charge 
of  the  annuities,  during  their  respective  continuance,  and  that  the  trus- 
tees should  account  to  her  for  the  third  part  accordingly  from  the  death 
of  her  husband,  and  from  time  to  time  for  the  future  during  the  term, 
and  the  term  to  stand  charged  therewith  during  her  life.  Sir  John 
Trevor,  Master  of  the  Rolls,  remarked  that  "  the  term  was  expressly  at- 
tending, and  waiting  on  the  freehold  and  inheritance,  nay  waiting  dur- 
ing the  very  charge,  as  to  the  surplus  of  the  profits.  The  dowress's 
husband  had  an  undeniable  right  to  the  surplus  of  the  profits,  and  had  an 
estate  tail  in  him,  and  the  dowress  under  him  had  a  good  equity  to  have 
ber  Dower,  because  the  trust  of  the  term  was  expressly  to  attend  the 
person  that  should  have  the  freehold,  and  her  husband  had  the  freehold, 
and  she  had  the  freehold,  («)  and  the  words  of  the  declaration  of  the 
r  *qfiQ  1  ^^^^^  were  thereby  literally  satisfied;  though  he  was  of 
"-  -J  ^opinion  that  if  the  words  had  been  in  general  to  attend  the 

inheritance,  it  would  have  been  the  same  thing,  and  she  had  a  right  to 
this  trust  witliin  the  description. "(o) 

In  Williams  v.  Wray(;;)  (1710),  the  plaintifi"  brought  a  writ  of  Dow- 
er and  recovered  judgment  by  default:  the  defendant  Sir  B.  Wray  pre- 
ferred his  bill  to  be  relieved  against  the  judgment  in  Dower,  on  this 
equity,  that  as  to  part  of  the  lands  (the  five  parishes  in  the  pleadings 
mentioned)  there  was  a  subsisting  term  for  ninety-nine  years  prior  to 
her  marriage,  and  that  the  legal  estate  of  that  term  was  in  one  Mr. 
Bulkley  as  a  collateral  security  for  his  quiet  enjoyment  of  certain  lands 
called  Lecquidissa;  that,  subject  to  this  collateral  security,  the  term  was 
declared  in  trust  to  attend  the  reversion  and  inheritance,  which  was  in 

{k)  Reg.  Lib.  cited  2  Vern.  by  Raithby,  405. 

(/)  See  p.  351,  supra.  (m)   Pr.  Ch.  241.    1  Eq.  Ab.  219. 

(n)  This  is  not  exactly  correct,  for  she  had  recovered  only  with  a  stay  of  execution,  and 
therefore  could  not  acquire  the  freehold  at  law. 
(o)  Pr.  Ch.  243,  .545. 
C/>)   1  P.  W.  137.  2  Vern.  378.  Pr,  Ch.  151.   I  Eq.  Ab.  219. 


OF  ATTENDANT  TEB&IS  AS  TO  DOWBI.  |0f 

Sir  William  Williams,  tlic  plaintiff's  late  husband,  who  devised  thete 
lands  to  Sir  B.  Wray  for  lifu  with  remainders  over;  and  ihal  hi«  guir- 
dian  had  let  the  plaintilV  take  judj^munt  at  law  without  vitin^  up  ihc 
term.  Lord  Keeper  Wrij^lit,  u|)on  thu  authority  of  Lady  Radnor's  cm**, 
(not  distinjTuishin^  between  a  devisee  and  a  [)urrha»c-r),  decreed  that  the 
plaintiff  Lady  Williams  was  not  duwable;  but  afterwards  ujwn  a  bdl  of 
review  brought  by  l^ady  Williams,  and  on  solemn  arj^ument  iHrforo 
Lord  Keeper  Harcourt,  he  reversed  Lord  Keep(.T  Wright's  decree,  ind 
ordered  that  Lady  Williams  having  recovered  Dower  at  law,  .  , 
this  trust  term  that  "Sir  Ji.  A\'ray  had  set  up  should  not  *■  '  J 
stand  in  her  way  in  equity. 

Consistently  with  the  princijile  established  by  the  above  cases,  ii  was 
decided  in  Duke  of  Hamilton  v.  Lord  Mohun,(<7)  that  where  a  bill  is 
broui>;ht  by  a  son  against  the  executors  ol  the  mother  as  guardian,  for 
an  account  of  mesne  j)rofits,  and  it  appears  that  the  motlier  was  entitled 
to  Dower  of  an  estate  which  was  in  mortgage  for  years,  but  the  mort- 
gagee had  never  entered,  that  "there  ought  to  be  an  allowance  of  the 
third  part  of  the  profits  for  Dower  to  the  mother  or  her  representatives; 
and  that  tlie  heir  could  not  insist  upon  the  term  to  prevent  her  Dovrcr. 
And  as  to  the  want  of  a  formal  assignment  of  Dower,  (for  it  appears 
there  was  no  recovery  of  Dower  in  this  case,)  that  is  nothing  in  equity 
for  still  the  right  in  conscience  is  the  same,  and  if  the  heir  brings  a  bill 
against  the  mother  for  an  account  of  profits,  it  is  most  just  that  a  court 
of  equity  should,  in  the  account,  allow  a  third  of  the  profits  for  the  right 
of  Dower." 

In  Squire  v.  Compton(r)  (1724)  the  husband  was  seised  in  fee,  sub- 
ject to  a  prior  mortgage  for  years,  and  became  bankrupt,  and  died,  and 
upon  a  question  between  the  wife  and  the  assignees  of  the  husband,  it 
was  decreed  that  the  wife  should  be  let  into  her  Dower,  keeping  down 
the  interest  of  a  third  part  of  the  mortgage.  In  this  case  it  would  ap- 
pear that  the  assignees  had  taken  an  assignment  of  the  ^  .^^^  -. 
^mortgage  after  the  death  of  the  husl)and,  but  that  was  not  al-  *- 
lowed  to  make  any  difference.(.s) 

In  Dormer  V.  Fortescue(/)  (1711)  upon  a  question  as  to  rents  and 
profits.  Lord  Ilardwicke  observed,  that  if  a  widow  is  entitled  to  Dower 
oi  an  estate  upon  which  a  term  for  years  was  standing  out,  and  she  had 
her  title  of  Dower  out  of  the  reversion  of  the  term,  ami  she  comes  into 
this  court  to  have  it  removed  out  of  the  way,  they  will  decree  her  an 
account  of  the  rents  and  profits  from  the  time  of  her  title  accrued,  and 
will  set  the  term  as  a  satisfied  one  out  of  the  way. 

The  especial  fiivour  shown  by  courts  of  equity  to  purchasers  for 
valuable  consideration  has  introduced  an  exception  to  the  rule  thai  a 
dowress  shall  have  the  benefit  of  a  satisfied  or  trust  term,  which  is  of 
considerable  importance  in  practice.     This  point  was  first  established  in 

(q)   1  P.  W.  lis.  ('•)  9  Vin.  Abr.  ^JV.   ^  K.j.  At..  387. 

(s)  It  was  insisted  that  creditors  and  assignprii  of  cominiMionrrii  of  bankrupt  iUnJ  only 
in  the  phice  of  the  bankrupt ;  and  bincc  such  an  a.Hsi«nn)rnt  lo  the  bankrupt  \nmf\{  ot  ht« 
heir,  would  not  protect  the  estate  from  tiile  of  dower  in  tho  hand*  of  the  heir,  nriihrr  wtll  il 
protect  the  estate  in  the  hnnds  of  ihu  creditors  of  the  bankrupt,  or  the  •••iRnrc.  of  th»  com- 
niissioners,  and  tliis  dillered  the  present  ca*e  from  the  case  of  K»Jnor  and  \  anUcbrndr. 
Tho  decree  appears  to  have  adopted  this  position. 

(<)  3  Atk.  131. 


170  PARK  ON  DOWER. 

the  case  of  Bodmin  v.  Vandebendy,(w)  which  still  continues  the  leading 
authority  on  this  head. 

^r,j^    n       The  facts  of  this  case  were  that  the  Earl  of  Warwick  *upon 
L  -I  marriage  of  his  son,  settled  part  of  his  estate  upon  his  lady 

for  a  jointure,  and  after  failure  of  issue  male,  limited  a  term  of  ninety- 
nine  years  to  trustees  to  be  disposed  of  by  the  Earl  either  by  deed  or 
will,  and  for  want  of  such  appointment,  then  in  trust  for  the  next  in 
remainder,  and  then  limited  the  whole  estate  in  such   manner  as  that  a 
third  part  of  a  moiety  came  to  Lord  Bodmin  the  plaintiff's  husband  in 
tail  general.     The  son  died  without  issue;  the  Earl  by  his  will  appoint- 
ed the  lands  to  his  Countess  for  so  many  years  of  the  term  as  she  should 
live,  and  to  her  executors  for  one  year  after  her  death,  and  charged  the 
term  with  several  annuities,  some  of  which  were  satisfied  and  others 
remained   in   being.      Lord  Bodmin,  being  in  possession, (w)  sold   the 
estate  to  Vandebendy  for  4,400/.  and  levied  a  fine  and  suffered  a  reco- 
very, but  to  which  the  wife  was  no  party,  and  Vandebendy  for  protec- 
tion of  the  estate  took  an  assignment  of  the  term  to  trustees  to  secure 
the  payment  of  the  annuities  and  afterwards  in  trust  to  attend  the  inherit- 
ance, and  also  of  an  ancient  statute  that  had  been  kept  on  foot.     After 
Lord  Bodmin's  death,  his  lady  brought  a  writ  of  Dower,  to  which  the 
defendant  pleaded  the  term;  whereupon  she  filed  her  bill  in  equity   to 
be  let  in  to  try  her  title  at  law,  off'ering  to  discharge  the  trusts  of  the 
term,  and  prayed  that  the  term  might  be  made  attendant  on  her  Dower. 
The  defendant  insisted  that  he  was  a  purchaser,  and  that  he   ought  to 
*„„„    -,  *have  the  benefit  of  this  term  and  the  statute,  for  the  pro- 
L       "^'"^    J  tection  of  his  purchase;  and  upon  the  hearing  before  Lord 
Chancellor  Jefieries  (Hil.  16S5,)  it  was  chiefly  argued  by  the  defendant's 
counsel  upon  "the  inconvenience  that  might  ensue  should  relief  be  given 
in  this  case:  that  it  would  alter  the  course  of  conveyancing,  and  over- 
throw many  purchases,  it  having  been  always  looked  upon  as  a  good  se- 
curity to  a  purchaser,  and  a  sufficient  protection  to  his  estate,  where 
there  was  an  ancient  term  kept  on  foot;  and  frequently  in  such  cases,  to 
avoid  charges,  they  never  insisted  on  a  fine  or  common  recovery;  and 
if  such  a  term  should  be  set  aside  for  a  dowress,  why  not  for  any  other 
incumbrance,  "(e^*)     Upon   the  first  hearing,  the  Lord  Chancellor  in- 
clined to  relieve  the  plaintiff".     Upon  a  subsequent  hearing,  however,  be- 
fore Lord  Chancellor  Somers,  in   1696,  his  lordship  doubted   whether 
he  could   relieve    a  dowress  even  against  an  heir  at  law,  which  was 
another  case,  but  here  there  was  a  purchaser,  and  he  could  not  assist  the 
dowress  against  a  purchaser,(a:)  and  for  that  which  was  alleged  that  the 
defendant   at  the  time  of  the  purchase  had  notice  of  the  plaintiff^'s  right 
of  Dower,  so  he  had  also  notice  of  the  lease,  which  was  to  protect  it, 
and  so  that  was  nothing.(y)     The  plaintiff" 's  bill  was  consequently  dis- 
missed, and  thereupon  she  appealed  to  the  House  of  Lords,  where  after 
solemn  argument  the  decree  of  dismissal  was  aflirmed. 

From  the  printed   reports  of  this  case,  tlie  decision  would   seem   to 

(m)  I  Vern.  179,  3.06.  2  Ch.  Ca.  172,  and  S.  C  by  the  name  of  Radnor  v.  Rolheram,  Pr. 
Ch.  65.      2  Freem.  211,  and  by  that  of  Radnor  v.  Vandebendy.  Show.  P.  O.  69. 

(v)  It  is  stated  by  Vernon  that  Lord  Bodmin  sold  only  the  reversion  after  the  death  of 
Lord  Warwick.     If  so,  how  could  Lady  liodrain  be  dowable  1 

(w)   1  Vern.  358.  "  (a)  Pr.  Ch.  66. 

(tf)  2  Freem  211. 


OF  ATTENDANT  TEBMS  AS  TO  DOWER.  171 

have  turned  nearly  as  much  u|)on  'the  doubts  which  then        ,__ 
prevailed  whether  a  dowress  was  entitled   to  the  h«Miefil   of  •■  J 

an  attendant  term  i/i  any  event,  as  upon  the  particular  circumstance  of 
its  heing  against  a  purcjjaser,  and  the  court  appears  merely  to  have  put 
it  as  making  the  case  stronger  against  the  dowress,  that  it  was  the  caie 
of  a  purchaser;  hut  the  later  cases  have  referred  Hodmin  and  Vande- 
bendy  exclusively  to  the  latter  ground,(r)  and  it  is  certainly  upon  that 
point  only  that  it  can  he  considered  as  law. 

In  Dudley  v.  Dudley,  Sir  .lohn  Trevor  remarked,  "I  conceive  that 
case  j)urely  to  have  been  decreed  in  favour  of  a  purchaser,  and  the 
strength  of  it  to  he  grounded  on  the  general  inconvenietjcc-j  that  would 
attend  all  i)ur(;ha?crs  boiuifuh^  witlioul  notice,  which  was  the  point  my 
Lord  Jefferics  and  Somers  went  upon,  and  for  which  occasion  was  cited 
the  case  of  Basset  v.  Nosworthy,  26  Car.  2,  in  Lord  Nottingham's  time, 
which  was  thus,  Nosworthy  pleaded  himself  a  purchaser  of  valuahlu 
consideration  without  notice,  which  plea  being  proved,  came  to  be  heard 
upon  the  merits,  and  the  Lord  Chancellor  declared,  That  a  purchaser, 
bondjidc,  and  without  notice  of  any  defect  in  his  title  at  the  time  of 
his  purchase,  may  lawfully  buy  in  any  statute,  mortgage,  or  any  other 
incumlnance;  and  if  he  can  defend  himself  by  those  at  law,  his  adver- 
sary shall  have  no  help  in  equity  to  set  those  incumbrances  aside,  for 
equity  will  not  disarm  a  purchaser;  and  precedents  of  this  kind  are  very 
ancient  and  numerous,  where  the  court  has  refused  to  give  any  assi.«tancc 
»against  the  purchaser  either  to  the  heir,  or  to  the  widow,  •3-5  1 
the  fatherless  or  to  the  creditors,  or  to  one  purchaser  against  ^  J 

anothcr."(^/) 

The  case  of  Radnor  and  V' andebciidy  was  followed  up  by  that  of 
Swannock  v.  Lyford  (174 1), (6)  before  Lord  Hardwicke;  the  judgment 
in  which,  as  given  from  a  very  full  note  in  one  of  Mr.  Uutlcr's  annota- 
tions to  Co.  J^itt.  is  too  important  to  be  omitted. 

"  Lord  Chancellor. — Plaintiff's  husband,  being  seised  of  a  freehold 
estate,  subject  to  a  term  of  1000  years  standing  out  in  a  mortgagee,  by 
virtue  ot  a  mortgage  made  by  his  father,  conveys  the  inheritance  to  de- 
fendant for  a  valuable  consideration;  and  at  the  time  of  the  conveyance, 
defendant  takes  an  assignment  of  the  term  in  mortgage,  in  the  names  of 
trustees,  to  wait  and  attend  upon  such  iidieritance;  and  now  the  plaintiff 
brings  her  bill  against  defendant  the  purchaser,  for  Dower,  praying  to 
be  admitted  to  redeem  this  mortgage  term,  and  to  have  it  out  of  the 
way;  and  upon  payment  of  her  |)roportion  of  the  mortgage  money,  to 
be  let  into  her  Dower  immediately,  that  she  might  not  wait  till  the 
determination  of  the  term.  (Question  is,  whethi-r  the  court  ought  to  de- 
cree tliis,  under  the  jjresent  circumstances  of  the  case  }  I  cannot  say 
but  that  the  decree  already  made  at  the  Rolls  for  plaintiff,  the  widow,  is 
absolutely  consistent  with  the  mere  reason  of  the  thing,  if  it  was  now 
to  be  considered  originally,  and  settled;  but  as  this  must  ,  ^^^g  ^ 
depend  not  "only  upon  the  precedents  of  the  court,  but  the  ^ 
practice  of  conveying  titles  to  estates,  upon  which  the  precedents  them- 
selves were  settled,  I  do  not  wonder  that  a  decree  of  this   kind    should 

(2)  SecPr.  Ch.  243.  219.  (o)   Pr.  Ch.  219.  ..     t        .*. 

lb)  Ambl.  C.  S.  C.  under  ihe  name  of  Hill  v.  AJiin*.  2  Alk.  208.    BuU..(-o.  U\X.  Jm, 
a.  n.  (1.) 


172  PARK  ON  DOWER. 

be  made  by  a  judge  who  was  not  absolutely  conversant  in  such  prece- 
dents of  the  court,  and  the  distinctions  taken  therein.  But  upon  consi- 
deration of  them,  and  the  great  authority  relied  upon  of  Lady  Radnor 
and  Vandebendy,  I  am  of  opinion  that  the  decree  ought  to  be  reversed. 
And  if  it  should  not,  would  it  not  be  going  directly  contrary  to  that 
great  authority,  and  the  reasons  upon  which  it  is  founded,  and  make 
such  uncertainty  in  this  court  in  regard  to  purchases,  that  the  subject 
would  not  know  what  to  rely  upon?  The  wife  here  claims  her  Dower, 
subject  to  a  term  originally  standing  out  in  a  mortgagee.  The  conse- 
quence of  that  is  that  in  law,  though  she  might  have  brought  her  writ 
of  Dower,  and  recovered  judgment,  yet  she  could  not  have  had  the  be- 
nefit of  it,  till  after  the  determination  of  the  term;  for  the  judgment 
would  be  with  a  cesset  executio  till  that  time.  This  was  the  wife's  legal 
remedy;  and  that  being  so,  she  comes  into  this  court,  upon  the  founda- 
tion of  her  general  right  of  Dower,  to  be  delivered  from  that  restriction 
which  the  law  imposes  upon  her,  from  having  the  benefit  of  it  till  such 
determination  of  the  term,  and  to  be  admitted  to  redeem  this  term, 
which  is  now  not  in  the  hands  of  the  mortgagee  but  of  the  purchaser, 
as  being  assigned  to  attend  upon  the  inheritance,  and  for  the  other  pur- 
poses before  mentioned:  and  though  the  assignment  is  not  in  the  words 
P  j,co77  T  "  to  protect  the  inheritance  from  Dower,  or  mesne  incum- 
L  "^  -J  brances,"  *yet  it  is  always  so  understood;  otherwise  there 
would  be  no  use  in  taking  the  term  in  the  name  of  a  trustee.  It  is  ad- 
mitted by  the  defendant,  in  case  things  had  stood  as  they  were  at  the 
time  of  the  marriage,  viz.  that  the  term  had  been  in  the  mortgagee,  and 
the  inheritance  in  the  husband,  as  heir,  or  purchased  from  him  by  the 
purchaser  without  an  assignment  of  the  term,  as  here,  the  wife,  as  enti- 
tled to  Dower,  might  then  have  come  here  to  redeem  the  mortgage,  to 
have  the  benefit  of  coming  at  her  Dower  immediately,  by  paying  off 
the  mortgage  money,  or  keeping  down  the  interest  for  the  benefit  of 
the  heir  or  purchaser.  And  even  this  was  (when  originally  settled) 
going  a  good  way  in  favour  of  a  dowress,  though  it  was  consistent  with 
the  reason  of  the  thing;  for,  as  she  was  entitled  to  Dower,  and  as  a 
mortgage  is  only  a  redeemable  interest,  it  is  fit  the  equity  of  redemption 
should  follow  the  nature  of  the  interest  in  the  estate;  and  she  to  be 
endowed,  and  the  heir  at  law  to  be  entitled  to  the  inheritance  subject  to 
such  Dower,  was  giving  the  wife  a  real  benefit  arising  from  her  Dower, 
and  not  a  mere  nominal  one,  as  it  would  be  at  law,  where  there  is  an 
outstanding  term;  for  when  the  law  says,  she  shall  have  judgment  for 
Dower,  but  with  a  cesset  executio  till  the  determination  of  the  term, 
that  is  in  fact  to  say,  she  shall  have  no  Dower,  and  therefore  this  court, 
as  against  the  heir,  but  not  the  purchaser  of  the  term  and  inheritance, 
gives  her  the  benefit  of  her  Dower,  by  removing  the  term.  And  if  all 
the  cases  of  tenancy  in  Dower  and  Curtesy  likewise  were  now  originally 
[-  *Q7o  -1  to  be  considered,  it  might  as  well  be  left  upon  the  strength 
'-  -■  of  the  law,  for  it  is  *undoubtedly  a  mere  legal  title  that  the 

one  has,  as  well  as  the  other;  and  there  is  no  contract  of  the  party's  in- 
tervening. Therefore,  if  a  woman  marries,  and  the  husband  is  in  pos- 
session of  an  estate,  or  if  a  man  marries,  and  the  woman  is  in  possession 
of  an  estate,  each  party  knows  that  at  the  time  of  the  marriage  their 
estates  are  liable  and  subject,  on  the  one  side,  to  a  tenancy  by  the  cur- 
tesy, and  on  the  other,  to  Dower,  and  to  all  mesne  incumbrances  and 


OF  ATTENDANT  TERMS  AS  TO  DOWER.  173 

terms;  and  there  is  no  harm  to  sav,  that  hoth  ^hall  lake  their  chance 
The  commiseration  in  respect  to  Dower,  has  arise.,  from  the  .hMi-rmin.l 
tions  in  favour  of  tenancy  by  the  curtesy;  and  indeed  the  d.stinclion 
made  between  Dower  and  tenancy  by  the  curtesy  is  founded  upon  very 
sh^ht  reasons;  but,  however,  it  has  been  so  est;d)h»hcd.  The  frreat 
point,  in  this  case,  depends  upon  the  determination  in  the  ra»c  of 
Lady  Radnor  and  Vandebendy.  (Here  Iris  lordship  stated  the  ra«c  ) 
There  was  great  doubt  in  Ibis  court;  and  so  in  the  House  of  Lords;  and 
there  was  a  great  inclination  in  the  bouse  to  reverse  that  decree  of  I^rd 
Somers;  but,  when  the  counsel  came  to  the  bar,  the  I^rds  asked, 
whether  it  was  usual  for  conveyancers  to  convey  terms  for  years  to* 
attend  the  inheritance,  to  prevent  Dower?  and  the  counsel,  with  ureal 
candour,  saying  it  vvas,  the  Lords  confirmed  Lord  Somers'  decix-e. 
The  point  that  weighed  in  the  judgment  was,  that  this  was  the  case 
of  a  purchase  for  valuable  consideration;  that,  in  making  convey- 
ances, purchasers  relied  upon  that  method  of  taking  a  conveyance 
of  the  inheritance  to  themselves,  and  an  assignment  of  the  term 
standing  out  to  a  trustee,  to  attend  it;  "that  the  out-  ,  . 
standing  term  was  prior  to  the  title  of  Dower  in  the  L  '^'^^  ] 
wife,  and,  therefore,  purchasers  have  relied  upon  that  as  a  bar  to 
such  Dower;  so  that  this  Court  and  House  of  Lords  were  of  opi- 
nion  that,  if  they  were  not  to  permit  that  to  be  so,  it  would  be  to 
overturn  the  general  rule,  which  had  been  established  and  practised  by 
many  titles  to  estates,  and   tend   to  make  such  titles  pn.-carious  for  the 

future." "■  Ever  since  this  case  it  has  always  been  said  that  the  court 

is  bound  by  it;  and,  on  the  other  hand,  I  have  heard  it  often  said  bv  the 
court  that  they  will  go  no  farther.  And  therefore,  to  have  the  k-nefil 
of  a  determination,  every  person's  case  must  be  exactly  and  strictly  the 
same  with  that.  I  am  of  the  same  opinion  too,  and  will  not  no  any 
further  than  that  case  does.  So  that  then  the  question  comes  to  be  thi«, 
whether  there  is  any  distinction  between  this  case  and  that?  It  is  said, 
that  liiere  the  ])urchaser  was  allowed  to  protect  himself,  bv  taking  in 
the  term  attendant  upon  the  inheritance,  because  that  was  a  salJMfied 
term,  wiiich,  in  the  consideration  of  this  court,  was  become  part  of  the 
fee;  that  he  purchased  the  whole  estate  of  the  husband,  and  therefore 
an  old  term,  such  as  that  was,  has  been  allowed  to  be  so  assigned,  to 
protect  the  inheritance,  but  that  in  this  case,  the  husband  had  nothing  in 
the  term,  because  he  was  owner  of  the  inheritance  subject  to  it,  and  of 
the  equity  of  redemption  of  it;  and  for  thai  at  tin;  time  of  the  purchase, 
the  term  was  in  mortgage,  and  standing  out,  and  the  money  advanced 
still  due  upon  it;  that  it  was  a  security  se|)arate  from  the  husband's  in- 
heritance;  and  the  purchaser  took  it  from  the  mortgagee  -  m^cn  i 
*only,  and  not  from  the  husband.  Hut  1  think  that  makes  *■  '*'  ■' 
no  difl'crence  here  from  that  of  N'andebendy.  If  there  is  any  difference 
it  is  against  the  plaintitT,  and  makes  the  case  much  stronger  in  favour  of 
the  ]nx'sent  purchaser.  It  is  dilVicult  to  say,  upon  the  stale  of  the  cas*', 
that  the  term  there  was  a  satisfied  term  at  the  time  of  the  purchaM-.  I 
rather  think  it  was  not;  for  Lord  Somers  slati-s  it,  that  the  Karl  of  War- 
wick, who  had  the  ])ower  of  a|)pointing  the  trust  term,  did  ap|  out  it 
by  charging  it  with  some  annuities  which  were  to  commence  a  year 
after,  and  tliat  some  of  them  were  continuing,  and  some  of  them  dcler- 
mincd,  and,  I  think,  after  the  purchase  made;  and  if  that  was  so,  this 
Vol.  XL— 2  Q 


174  PARK  ON  DOWER. 

was  not  a  satisfied  term,  but  still  subsisting  to  pay  those  annuities, 
which  were  incumbrances  continuino;  upon  the  terms:  so  that  Vande- 
bendy,  who  took  the  assignment  of  the  term,  took  it  subject  to  the  trust 
so  continuing  on  it,  in  like  manner  as  the  purchaser  here  took  the  term, 
subject  to  tiie  mortgage,  and  the  money  due  thereon.  Therefore  the 
distinction  endeavoured  to  be  made  between  tlie  case  there  being  a  sat- 
isfied term,  and  this  being  a  mortgage  term  not  satisfied,  fails.  But  sup- 
posing the  term  had  been  satisfied,  how  would  that  make  any  differ- 
ence? It  is  true,  that  would  then  have  been  a  trust  for  the  husband  and 
his  heirs,  and  he  would  have  it  as  a  part  of  his  ownership  and  dominion 
over  the  estate,  and  consequently,  it  would  be  subject  to  Dower,  as 
against  the  husband.  For  if  the  husband  dies,  and  there  is  a  satisfied 
term   continuing,  the    wife  would    be   entitled   to  come  into  this  court 

*QQi  1  'ig^'"st  the  heir,  to  set  that  term  out  of  the  way,  in  *order 
L  -"to  have  the  benefit  of  her  Dower;  and  that  is  expressly  so 

said  in  the  case  of  Banks  and  Sutton,  2  Wms.  700,  by  the  master  of  the 
Rolls,  and  he  cites  a  case  to  that  purpose:  and  undoubtedly  she  would, 
without  paying  any  thing.  And  if,  in  the  present  case,  the  husband  had 
made  no  conveyance  to  the  purchaser,  and  the  mortgage  had  continued 
in  the  mortgagee,  or  his  assignee,  and  the  equity  of  redemption  had 
descended  on  the  heir,  she  would  have  been  entitled  likewise  to  Dower 
against  him,  by  redeeming  the  term,  and  paying  her  proportion  of  the 
mortgage  monev,  or  by  keeping  down  the  interest.  Bui  if  a  term  for 
years  is  in  mortgage,  and  a  person  purchases  the  inheritance  of  the  hus- 
band, and  takes  an  assignment  of  the  term  from  the  mortgagee,  by  pay- 
ing off  the  money,  not  only  to  have  the  trust  of  the  term  as  a  security, 
but  to  protect  the  inheritance  so  purchased,  would  it  not  be  hard  to  take 
away  the  benefit  of  it  from  him?  Shall  it  be  said,  that  he  shall  have  a 
less  inheritance  by  taking  in  a  mortgage  term  in  that  manner,  b}'  ac- 
tually paying  off  the  mortgage  money,  that  if  he  had  taken  an  old  satis- 
fied term,  for  which  he  never  paid  any  thing?  Therefore,  if  the  term 
in  Lady  Radnor's  case  had  been  a  satisfied  one,  that  would  have  been  so 
far  from  distinguishing  that  case  from  this  in  favour  of  the  plaintiff,  that 
it  would  have  been  rather  stronger  in  favour  of  the  purchaser,  for  here 
he  paid  a  consideration  for  the  outstanding  term,  and  there  nothing 
would  have  been  paid  for  such  satisfied  term.  But  it  is  said,  that  this 
ptirchase  of  the   mortgage  was  from   the   mortg;igee,  and    not  from  the 

^  -|   husband.      If  that  was  so,  I  do  not  know   that  this  would 

L  -J   make  any  difference,  because  the  husband  here  *joined  in  the 

assignment  of  the  mortgage.  But  what  results  from  this  case  is,  that  it 
was  part  of  the  agreement  of  all  the  parties  (the  husband  joining)  that 
the  term  should  be  purchased  in  by  the  purchaser  of  the  estate,  to  attend 
his  inheritance;  and  that  is  the  very  trust  declared  by  the  deed.  Jt  has 
been  admitted  here,  that  if  the  husband  had  paid  off  the  mortgage  him- 
self, after  the  coverture,  and  taken  an  assignment  of  the  term  in  mort- 
gage, in  trust  for  him  and  his  heirs,  to  attend  the  inheritance  (in  which 
case  it  would  have  then  become  a  satisfied  term;)  and,  after  this,  a  pur- 
chaser had  purchased  from  him,  and  paid  him  the  whole  money,  and 
taken  a  conveyance  of  tiie  inheritance  from  him,  and  an  assignment  of 
the  term  from  the  trustees,  that  would  have  been  very  well,  and  within 
the  case  directly  of  Lady  Radnor.  What  is  the  difference  then,  in  the 
reason  of  the  thing,  whether  the  husband  pays  off  the  mortgage  himself, 


OF  ATTENDANT  TEBMS  AS  TO  DOWEB.  175 

and  tnkes  an  assi{;nment  of  tho  term,  in  tnisl  for  himself  and  hit  heir», 
and  then  sells  to  a  purchaser  the  inheritance  who  takes  the  term  from 
the  trustees;  or  whether  the  piirchasrr  comes,  and  purchases  the  inhrrit- 
ance  from  the  hushand,  and  pays  off  the  mor«j;aKe,  and  take*  an  a»si|pi- 
ment  of  the  term  to  himsell;  is  the  case  the  less  strong  fur  ifial?  It  is 
rather  stroni;;er. — It  is  admitted  that  if  this  had  Ix-en  an  old  fuiitfied 
term,  standing  out  attendant  upon   tho  inheritance,  and  a  \,<  fiad 

purchased  from  the  husband,  and  hid  taken  in  this  term,  thai  ..vc 

j)rotected  the  inlu-ritance:  That  if  a  niati,  hefore  marriage,  convt-ys  his  es- 
tate privntely,  without  the  knowlerl<ie  of  his  wife,  to  trustees,  in  trust  for 
himself  and  his  heirs  in  fee,  that  will  prevent  "Dower.  So  j.  ,.  - 
if  a  man  purchases  an  estate  after  coverture,  and  takes  a  con-  ••  ■' 

veyancc  to  trustees,  in  trust  lor  himself  and  his  heirs,  that  will  put  an 
end  to  Dower:  so,  if  he  takes  an  estate  in  jointenancv,  or  a  ronve\ancc 
to  himself  for  a  lonij;  term  of  years.  Hut  it  is  objected,  that,  the  act 
done  here  by  the  purchaser,  at  the  time  of  his  purchase,  he  having  no- 
tice of  the  ni;trri;ige,  will  put  the  wife  in  a  'vorse  condition  than  ahe 
would  have  been  in  oiiffinallv,  if  the  purchaser  had  not  intervened; 
since  then,  there  would  have  been  a  redeem;d)le  mortgage,  (the  equity 
of  redemption  beinfi  in  the  husband,)  and  the  husband  dying,  hhe 
would  have  been  entitled  to  redeem  such  mortgage,  and  then  to  have 
had  Dower;  and,  therefore,  by  the  purchaser's  knowing  of  the  title  of 
Dower,  l)y  reason  of  the  marriage,  he  would  have  put  her  into  a  worse 
condition,  which,  in  equity,  he  ought  not  to  have  done;  and  this  ought 
not  to  alter  her  right.  Hut  this  does  not  dilR-r  from  the  common  case. 
For,  in  this  case,  suppose  the  husband  had  before  the  purchase  redeemed 
the  mortgage,  and  taken  an  assignment  of  the  mortgage  term,  in  trust 
for  himself  and  his  heirs,  to  attend  the  inheritance,  and,  after  that,  the 
purchaser  had  purchased  from  him,  and  taken  an  assignment  of  such  at- 
tendant term,  in  trust  for  him  and  his  heirs,  would  not  that  have  allereti 
the  wife's  right  to  Dower,  though  without  that  intervention  of  the  pur- 
chaser? She  would  be  entitled  to  her  Dower  as  against  the  heir;  so 
likewise  in  case  of  an  old  term  attending  u[)on  the  iidteritance  in  tru.M: 
but  this  purchase  prevents  the  descent  of  the  estate  to  the  heir,  and 
therefore  it  is  not  to  be  said,  that  the  purchasers  have  put  ^  .^g^  , 
the  wife  in  a  'worse  condition,  by  the  intervention  of  their  |- 
purchase;  but,  because  conveyancers  did  rely  upon  the  a.<(signment  of 
the  term  to  trustees  to  protect  the  inheritance,  as  suflicient  for  that  pur- 
pose, it  was  determined  as  had  been  mentioned;  and  I  do  not  .•kt  how 
the  present  case  can  diller  from  that  of  an  old  ternj  to  attend  the  inherit- 
ance.  Ikit  the  present  point  is,  that  here  the  term  was  in  the  mort- 
gagee, and  the  inheritance  in  the  husband.  The  term  will  stand  in  the 
'wa"v  of  Dower  at  law,  and  the  j)urchaser  comes  in  upon  that  foot,  pa\8 
liis'money,  and  relies  upon  that  term  to  protect  his  purchase;  and  there- 
lore,  I  think  that  is  strictly  within  the  reason  of  the  ca.sc  of  Lady  Rad- 
nor and  \'andebendv,  and  all  the  other  cases  grounded  ujion  it.  Ano- 
ther distinction  nuule  is,  that  there  is  an  express  covenant  taken  from 
the  husband  against  tlu!  Dower  of  his  wife;  for  the  covenant  is,  that  the 
purchaser  should  enjov  the  estate  free  from  incimibranccs,  &c.  and  from 
all  Dowers,  &c.  and  particularly  the  Dower  of  the  |)laintifr;  and  then 
there  is  a  covenant  for  farther  assur;ince:  and  that  this  shows  that  the 
purchaser  relied  upon  this  covenant  as  his  security  to  indaninify  him 


176  PARK  ON  DOWER. 

against  Dower;  and  that  it  is  plain,  without  question,  this  is  notice  of 
the  Dower.  A  man  may  reasonably  take  a  covenant  against  such  right 
of  Dower,  and  yet  rely  upon  the  security  of  the  trust  term  besides,  and 
may  take  such  covenant  against  any  damages,  in  respect  to  any  suits  by 
the  wife  for  Dower.  The  purchaser  did  not  purchase  here  subject  to 
his  wife's  Dower,  for  he  paid  a  price  for  the  estate  exclusive  of  it.  If 
the  estate  in  his  hands  had  been  subject  to  the  Dower,  then  the  covenant 

^  against  it  of  the  husband's  would  not  have  signified.     But, 

^  -'  however,  be  *that  as  it  will,  it  is  similar  to  that  of  Vande- 

bendy;  for  there  the  purchaser  took  two  statutes,  (with  defeazance)  to  in- 
demnify the  estate  from  incumbrances  and  the  wife's  Dower,  and  to 
suffer  a  recovery;  and  it  was  insisted  upon  there  by  the  counsel,  as  it  is 
here,  but  Lord  Somers  said,  though  a  man  does  take  such  security, 
which  he  does  to  prevent  any  damages  that  may  arise,  yet  that  does 
not  preclude  him  from  any  favour  he  is  entitled  to. — Therefore,  upon 
the  whole,  I  think  the  decree  ought  to  be  reversed,  and  the  bill  to  be 
dismissed." 

In  the  case  of  Wynn  v.  Williams, (c)  the  protection  derived  from  an 
attendant  term  against  Dower,  in  the  case  of  a  purchaser,  was  held  to 
extend  to  a  mortgagee,  who,  upon  advancing  his  money,  takes  an  as- 
signment of  the  term.  "  It  is  perfectly  established  (said  Lord  Alvan- 
ley,)  that  a  purchaser  for  valuable  consideration  from  the  owner  of  the 
equitable  interest,  may  protect  himself,  though  the  owner  could  not,  by 
the  assignment  of  any  outstanding  terms.  He  might,  therefore,  protect 
himself  against  any  demand  she  might  have  of  Dower  at  law.(^)  The 
decision  is  a  very  ancient  one,  and  was  affirmed  in  the  House  of  Lords. 
Therefore,  however  questionable  it  might  have  been,  it  is  now  clear, 
that  a  purchaser,  or  a  mortgagee,  who  is  a  purchaser  pro  tanto,  though 
he  knows  of  the  right  of  Dower,  may  advance  his  money,  and  taking  in 
r  *^«?R  1  ^  tsrm,  may  *avail  himself  of  it:  though  the  consequence 
L  J  will  be  utterly  defeating  her  right  of  Dower."(e) 

It  was  said  by  Lord  Somers,  in  Radnor  v.  Rotheram,  that  in  case 
there  had  been  any  agreement  that  the  wife  should  have  had  her  Dower, 
that  there  the  term  should  not  have  stood  in  her  way;(/)  and  he  cited 
a  case  of  Barker  and  Fouke  to  that  point,  which  does  not  appear  to  have 
been  ever  reported.  The  agreement  intended,  is,  it  is  apprehended, 
agreement  at  the  time  of  the  purchase,  so  as  to  give  the  wife  a  special 
equity  against  the  purchaser,  contrary  to  the  general  rule  of  the   court. 

The  circumstance  that  in  Radnor  and  Vandebendy,  and  Swannock  v. 
Lyford,  the  terms  which  afforded  the  protection  to  the  purchasers  were 
in  both  cases  vested,  at  the  time  of  the  purchases,  in  the  persons  to 
whom  they  were  originally  limited,  and  charged  in  the  one  case  with 
the  annuities,  and  in  the  other  with  the  mortgage  debt,  and  that  it  was 
consequently  necessary  for  the  purchasers  to  take  an  assignment  of  those 
terms,  in  order  to  prevent  the  dowress  from  redeeming  or  satisfying 
them  herself,  which  she  might  otherwise  have  done;  and  the  emphasis 

(c)  .5  Ves.  130. 

(rf)  [It  is  not  necessary  that  the  term  should  have  been  assigned  for  this  purpose.] 

(e)  5  Ves.  134. 

(/)  2  Freem.  211.  Pr.  Ch.  66.  So  it  was  admitted,  or^wenJo,  in  Radnor  v.  Vande- 
bend}-,  that  if  any  allowance  had  been  made  in  the  purchase,  upon  consideration  of  the  title 
to  dower,  the  same  would  have  been  a  very  material  argument.     Show.  P.  C.  72, 


OF  ATTENDANT  TEBMS  AS  TO  DOWKB.  177 

with  which  Lord  Hardwicke,  in  Ihc  latter  case,  adverted,  'throunhoui 
the  whole  of  his  jii(ip;ment.  to  the  (|uahricatiorj  that  an  :itsii;nmcnt  of  the 
*tcnn  was  indispensable  in  order  to  hrinp  the  purrliavr  •«aT  1 
within  the  protection  to  he  aflurded  by  that  term,  has  intro-  ^  J 

duced,  in  modern  times,   the  doctrine,  fortified  at  length  by   decision, 
that  to   exclude  the  dowress,  the  term  must  on  every  succcMivc  pur- 
chase he  assigned  to  a  new  trustee,  upon  express  tru^t»  to  ailttM   the 
inheritance  as  vested  in  that  purchaser;  and  ihat  it  is  not  enough   lltal 
the  term  has  once  been  assif^ncd  to  attend.     This  doctrine  will  Im.-  found 
largely  discussed  in  the  case  of  Mauiulndl  v.  Maunrlrell,{/f )  from  which 
the  fo!lo\vin<»;  jiassnge  is  the  more  material   part  of  Lord   Eldon's  jud|(- 
ment,  when  the  case  came  before  his  lordship  upon  ap()cal,— *♦  The  next 
question  is,  wliether  a  term  having  been  once  assigned  to  attend  the  in- 
heritance, in  a  foriner  transaction   which  touches  the  estate  made  ll»c 
subject  of  a  subsequent  purchase,  where  the   purchaser  lakes  a  convey- 
ance of  the  inheritance,  but  docs  not  deal  in  any  niatuicr  with  the  liTm, 
he  can  say  as  against  the  widow,  she  is  not  enlitlfd  to  Dovvcr  out  of  thai 
inheritance,  and  upon  this  ground,  tiiat  the  term   having  i>ccn  oner  as- 
signed to  attenti  the  inheritance,  is  to  b(!  considereil   always  as  assigned 
to  attend  the  inheritance,  and  the  etfect  in   law  and  ecpiity   is  precisely 
the  same  as  if  that  subsequent  purchaser  had  got  in  the  term,  viz.  aa  if 
he  or  his  trustee  had  possessed  themselves  of  the  instrument  creating 
the  term,  and  made  the  trustees  in  whom  it  was  vested  parties  to   hia 
conveyance,  declaring  that  they  would   hold  it  for  him,   and  to   attend 
the  inheritance  purchased  "by  him. — I   felt  great  difliculty,  .     .^^g    , 
upon  the  argument,  to  make  consistent,  nor  can  I  now  make   •■ 
consistent  with  any  rational  principle,  the  doctrine  that  the  punhascr 
shall  be  protected  in  the  one  case,  and  not  in  the  other."     His  lordship 
then  took  a  brief  view  of  the  general  doctrine  of  attendant  ti-nns,  and 
the  protection   afforded  by  them  in  general  cases   to    purchasers,   &c. 
without  notice,  and  added:  "  With  reference  to  that  there  is  a  distinction 
as  to  the  dowress:  a  distinction  that  has  prevailed   upon   no  principle, 
hut  merely  upon  the  practice  of  conveyanct-rs;  fur  in  Latly   liadnor  r. 
Vandebcndy,  where,  according  to  the  note   ol    Swannock   v.   Lillord,  a 
term,  not  satisfied,  had  been  declared  expressly  to  attend  the  inheritance, 
one  thing  is  clear,  that  the  purchaser  had  notice  that  the  indiviilual  of 
whom  he  purchased  was  married;  and,  therefore,  that  her  inchoate  title 
as  dowress  had   attached  upon   the   inheritance;  consequently   that  the 
term  when  it  shoidd  he  satisfied,  and  before  it  was  satisfied,  subjoci   to 
the  purpose  for  which  it  was  raised,  was  one  in  which  the  trustees  had 
the  legal  estate  to  attend  upon  all   the  interests  in    the   iidienlance,   the 
estate 'of  the  husband  and  the  widow,      if  this  wrrr   res  iiUr-^ra,   the 
proposition  would  be  monstrous,  that  the  purchaser,  having  notice  of  his 
right,  and  of  tl)C  use  that  is  made  of  a  term  outstanding  by   a   court  of 
equity,  should  buy  in  the  term,  and  with  full  notice,  not  .^quor/c  out  any 
other  incumbrance,  but  effectually  displace  the  Dow.r.    That  proposition 
wasthought  and  argued  at  the  limeofthcdecision  of  Lady  Radnor  v.  Van- 
debcndy,''not  to  be  very  easily  reconciled  with  thr  •urdinary  r     .,,^J,    j 
principles  of  equitv;  but  the'  House  of  Lords,  upon  the  in- 
formation given  al  llie  i)ar,  and  confirmed  by  Lord  Somer.-*.  which,  alter 

(^)  7  Ves.  567.   10  Vm.  2t0. 
2  Q  ii 


178  PARK  ON  DOWER. 

reading  that  case  and  Swannock  v.  Lifford  repeatedly,  appears  to  me 
the  true  point  of  that  decision,  held  that  the  term  having  been  assigned 
in  that  contract  of  purchase,  the  purchaser  was  for  that  reason  to  be  pro- 
tected, and  the  authority  is  the  stronger  if  the  note  of  Swannock  v. 
Lifford  is  correct,  stating,  that  previously  to  the  purchase  in  that  case, 
and  by  an  antecedent  instrument,  that  very  term  was  declared  attendant 
upon  the  inheritance.  There  could  not,  therefore,  be  any  difference  in 
the  reason  of  the  thing,  unless  it  turned  upon  the  very  fact,  that  there 
had  been  an  actual  assignment.  In  Swannock  v.  Lifford  Lord  Hard- 
wicke  says  expressly,  and  the  House  of  Lords  had  determined,  that  they 
would  not  go  farther. 

"  Upon  the  whole  I  mean  not  to  say,  for  it  is  impossible  to  say  with 
confidence,  that  there  is  any  great  difference  in  principle  upon  the  case 
of  a  dowress;  that  she  stands  as  an  owner  of  the  inheritance  contradis- 
tinguished from  every  other  owner:  so  that  though  notice  of  the  title 
will  protect  every  other  interest  in  the  inheritance,  it  shall  not  protect . 
her,  and  nothing  shall  protect  her  but  the  circumstance  that  the  purchaser 
has  omitted  to  take  an  assignment  of  the  term  to  be  attendant  upon  the 
inheritance  in  that  very  transaction;  though  the  term  has  in  a  prior 
transaction  been  declared  attendant  upon  the  inheritance.  But  in  the 
case  of  Swannock  v.  Lifford,  Lord  Hardwicke  takes  the  House  of  Lords 

^  to  have  so  decided;  upon  the   Aground   that  in  those  very 

L  "^^^  J  circumstances,  and /A«//(rec?5e  cf/^e,  the  court  is  bound,  not 
by  a  principle  upon  which  it  can  well  reason,  but  by  a  practice  of  con- 
veyancers, found  to  be  inveterate,  that  to  that  length  it  will  go,  and 
that  it  will  not  go  farther.  At  least  my  opinion  is,  that  the  ground  upon 
which  the  Master  of  the  Rolls  decided  that  part  of  the  case  is  right,  and 
therefore  I  confirm  that." 

It  is  understood  in  practice,  that  in  order  to  protect  a  purchaser 
against  Dower,  the  term  must  be  actually  assigned  before  the  death  of 
the  husband.{h)  This  point,  like  most  others  connected  with  the  pre- 
sent subject,  rests  more  upon  practical  impression,  than  upon  the  reason 
of  the  thing.  If  law,  it  appears  to  have  been  wholly  overlooked  in  the 
case  of  Wynn  v.  Williams,  before  mentioned,  in  which  all  the  transac- 
tions were  subsequent  to  the  death  of  the  husband,  but  the  mortgagee, 
and  subsequent  purchaser,  were  held  to  be  protected  by  the  assignment 
of  outstanding  terms. 

In  practice,  great  difference  of  opinion  exists  as  to  the  propriety  of 
relying  upon  an  assignment  of  an  attendant  term,  as  a  security  against 
titles  of  Dower.  On  account  of  the  expense  of  levying  a  fine,  or  the 
difficulty  of  obtaining  releases  from  the  widows  of  former  owners,  the 
sufficiency  of' the  term  as  a  protection  is  generally  contended  for  on  the 
part  of  a  vendor,  and  since  the  decision  in  Maundrell  and  Maundrell,  a 

*QQi     n  ft'"*^  ^^^^  h&Qn  dispensed  with  in  a  great  *number  of  cases, 
L  -'  the  purchaser  contenting  himself  with  taking  an  assignment 

of  the  term  to  his  own  trustee,  and  a  bond  of  indemnity  against  Dower 
from  the  vendor.  The  present  practice,  however,  seems  to  have  a  lean- 
ing towards  insisting  upon  a  fine  in  most  cases,  on  the  part  of  a  pur- 
chaser, where  the  property  is  of  any  considerable  value,  although  as  to  a 
mortgagee,  the  assignment  of  a  term  is  usually  considered  sufficient. 

{h)  And  see  Walk.  Princ.  by  Preston,  53. 


OF  ATTENDANT  TERMS  AS  TO  DOWEK.  179 

It  is  frequently  insisted  by  the  counsel  for  a  purchater,  ihat  although 

the  term  does,  while  cxistinir,  afi'unl  an  inipcdiment  to  ihc  nucccMful 
prosecution  of  a  claim  of  Dower,  yet  that  the  protection  afforded  by  it 
is  not  such  as  can  be  relied  upon  by  a  purchaMT  to  diupcnsc  with  the 
necessity  of  a  fine,  inasmuch  as  the  term  is  always  liable  to  acridental 
and  unintended  merger,  and  the  purchaser  would,  notwithstanding  the 
existence  of  the  term,  still  remain  exposed  to  the  harass  and  exjx-nsc  of 
defending  a  writ  of  Dower,  since  liie  term  cannot  be  used  as  a  bar  lo 
the  action,  but  only  to  postpone  the  enjoyment  under  the  jii<lKmcnt(i) 
To  the  latter  objection  it  has  been  replied,  that  should  the  widow  \tt  ao 
ill  advised  as  to  prosecute  her  title  of  Dower  at  law,  there  can  l>e  little 
doubt  that  a  court  of  etpiity,  uj)on  a  disclosure  of  the  real  ,___  , 
circumstances  of  the  "title,  would  grant  an  injunction  against  ^  **  *  J 
the  prosecution  of  the  legal  title,  and  would  saddle  the  widow  with  the 
costs  at  law  and  in  equity;  and  this  opinion  has  been  sanrtioncd  by 
gentlemen  of  considerable  eminence,  liut  it  may  j)erh3ps  be  going  too 
far  to  consider  it  clear  that  a  special  j)roteclion,  originally  aflor<led  uf)ori 
the  ground  that  if  a  dowress  could  get  only  an  ineflectual  and  imj>erfecl 
remedy  at  law,  she  should  not  l)e  (tided  in  ecpiity  again-tt  a  purchaser, 
should  be  extended  in  the  oj)posite  direction,  lo  restrain  her  from  the 
prosecution  of  her  legal  remedy  to  that  extent  to  which  the  law  xcould 
carry  it. 

Whether  or  not  under  these  circumstances  a   court  of  equity  would 

compel  a  purchaser  to  accept  the  title  without  a  fine  from  the  yetulor  and 

his  wife,  has  never  been  expressly  ilecided,  but  in  the  case  of  Maundrcll 

fV.  Maundrell,  Lord  Eldon  incidentally  threw  out  an  oj)inion,  that  "  the 

Vcourt  looiild  make  the   purchaser  take  the   title,  as  the   trustees  might 

C04ivey."(/t') 

Jo  the  subsequent  case  of  Simpson  v.  Clutteridgc,(/)  Sir  Thomaa 
PluiiWr,  V.  Ch.  appears  to  have  been  of  the  same  opinion,  observing, 
that  "^s  it  is  admitted  this  term  has  been  assigned  in  favour  of  these 
purchafers,  it  docs  away  all  the  objections  raised  in  the  first  exception, 
it  being  clear  that  no  claim  of  Dower  can  be  made  against  this  pur- 
chaser." 

It  was  not  necessary,  however,  expressly  to  determine  the  point  in 
this  case,  the  wife  having  a  jointure. 

The  observations  upon  the  point  above  given  'haye  not  .  •393  i 
been  altogether  satisfactory  to  the  profession, (7/*)  and  it  may  *■  ■» 

perhaps  be  permitted  to  entertain  a  doubt  whether,  whenever  the  case 
shall  be  tiioroughly  investigated,  enougli  will  not  appear  to  induce  the 
court  to  feel  some  scru|)les  in  com|)elling  a  purchaser  to  content  himselt 
with  the  protection  allorded  by  an  attendant  term.  Hfsides  the  objec- 
tions made  in  practice,  it  might  aLso  be  urged,  that  the  common  imprc.« 
sion  that  judgment  is  given  at  law  with  rtsset  ejtculio  in  every  ca^- 
where  there  is  an  existing  term  is  exceedingly  erroneous;  for  wc  have 

(»>Seo  Walk.  Princ.  by  Preston,  5'J  ;  anJ  :J  I*n'«t.  \U{.  379.  405.  It  U  ohJ4>clrd  too 
lhat  th\  (Hirchasor  would  be  at  llio  expeiisr  of  kocjiinti  the  term  on  fool  (•«*  8ugJ.  Vrnd.  Ml', 
but  lhit>  objection  cannot  Iw  consiiUrcil  a.s  of  much  wriKbl,  iinrc  in  conMS]urnr«  of  the  pri>- 
lection  whiili  tlicy  alVonl  against  other  incumbranccn,  ouUt«iiding  tcniM  ar*,  in  OMkai  pr*c- 
tice,  preserved  with  so  much  anxiety. 

{k)    10  Ves.  262.  (/)    lM.dJ.  618. 

(m)  And  see  Sugd.  Vend.  302. 


ISO  PARK  ON  DOWER. 

already  seen,  that  the  only  case  in  which  execution  shall  cease  during  the 
term,  is  where  no  rent  is  reserved  upon  the  creation  of  the  term,  and 
that  in  all  cases  where  there  is  a  rent  reserved,  execution  shall  be  award- 
ed immediately,  with  a  saving  of  the  interest  of  the  termor.  As  in 
almost  all  demises  a  pepper-corn  rent  at  least  is  reserved,  and  as  the  wife 
will  at  law  be  endowed  of  that  rent,  it  follows  that  she  would  gain 
execution  of  the  freehold,  and  be  entitled  to  exercise  all  those  rights 
which  might  arise  from  the  ownership  of  the  freehold,  so  far  as  they 
were  not  inconsistent  with  the  ownership  under  the  term,  which,  in 
cases  it  is  not  impossible  to  conceive,  might  be  the  means  of  harassing 
the  purchaser. 


INDEX. 


The  pages  referred  to  are  tliose  between  brackets,  [  ]. 

ABATOR,  wife  of,  dowable,  37. 

ACCOUNT  of  rents  and  profits  may  be  had  by  a  dowress  in  ctiuitv,  .'i.'M). 

ADMEASUREMENT  OF  DOWER,  writ  ot,  'JTM. 

ADVOWSON,  a  woman  id  dowable  of,  when.  111,  111. 

,  liow  to  be  endowed  oti  253.     What  seisin  of  in  the  husbtnd  neoeatn, 

36. 
ADULTERY,  whctlicr  a  bar  to  Dower,  20,  223. 
AGE  of  the  wife  in  order  to  entitle  her  to  Dower,  17,  18. 
AGREEMENT.     See  Contract 
ALIEN  cannot  have  Dower  unless  married  by  license  of  the  king,  2iJS. 

,  wife  of,  can  derive  no  title  of  Dower  from  him,  229. 

.     See  Queen  Consort. 

ALIENATIONS  by  the  husband  considered  with  reference  to  llie  title  of  Dower,  231, 

et  seq. 
by  the  husband,  though  immediately  before  marriage,  will  prcvcnl 

Dower,  2:3ri,  :iH2. 

not  completed  till  after  marriage  may  be  good  against  the  dowresi  by 


relation,  2^34. 

customary  alienations  after  marriage  may  be  good  against  the  dowroa, 


24.5.     See  Copyholds. 

by  tenant  in  Dower,  300. 


ANNUITY  IN  FEE,  no  Dower  of,  111. 

APPENDANTS,  a  woman  dowable  of  in  some  cases,  114. 

APPOINTMENT  UNDER  A  POWER,  whether  it  defeats  Dower  on  tlie  oaUte  de- 
termined by  it,  H4,  186. 

cflect  of  the  mistake  frequently  occurring  in  practice  of  appointing 

to  the  releasee  to  uses  instead  of  to  the  use.s  'J^K  note. 

ARREARS  OF  DOWER  recoverable  in  eciuity,  3:U),  3:32. 

ASSIGNMENT  OF  DOWER  how  to  be  made  ncconling  to  common  right,  2r)l. 
Against  common  right,  202.  How  proiwrtion  of  the  (iowrei«  is  to  be  aacertaincd, 
255.  Must  be  of  lands  of  which  the  woman  is  dowable,  2t>-l.  Cannot  have  a  coo- 
dition  annexed  to  it,  ib.  Who  it  may  be  made  by,  2(>5.  Hy  an  incomp^-tonl  per- 
son is  not  void  but  voidable,  2(H.  Defeats  the  mesne  Hcisin  ct  the  heir.  l.V».  ;V13. 
Avoids  a  descent  cast,  142.  Discharges  remaining  lands  of  the  lanibond  from  lh« 
title  of  Dower,  213,  277.  Does  not  require  livery  or  writing.  2<!i».  In  Chancery 
is  by  commission,  273.     Remedies  for  n  partial  or  erroneous  RK..tignn»cnt,  271. 

ATTAINDER  of  the  husband  when  n  bur  to  the  wife's  Dower,  217. 

of  the  wife,  222. 

ATTENDANCY  of  tenant  in  Dower  for  the  services,  314. 

ATTENDANT  TERMS  when  set  aside  in  equity  as  against  a  Dowrew,  363. 

AVON  navigation  shares  are  subject  to  Dower,  114. 

BAILIW'ICK,  a  woman  may  be  endowed  of,  112. 

BANISHMENT  of  husband  accelerates  the  right  to  Dower.  249. 

BARGAIN  AND  SALE  made  before  marriage,  and  enrolled  after,  good  against  dow- 
ress, 234. 

-  in  bankruptcy,  its  relation  to  the  act  of  bankruptcy  may  defeat 

Dower  in  some  cases,  2;3»j. 


182  INDEX. 

BARGAINEE  who  dies  before  enrolment,  whether  his  wife  shall  be  dowable,  28. 
BIGAMY  an  impediment  to  Dower,  15.     Cannot  be  pleaded  to  a  writ  of  Dower,  but 

must  be  given  in  evidence  before  the  bishop,  16  note,  290. 
BUILDINGS  erected  by  alienee  of  husband,  whether  to  be  included  in  estimating 

Dower,  256. 

CAPITAL  MESSUAGE,  a  woman  is  dowable  of  in  what  cases,  121.     How  she  shall 

be  endowed  thereof,  254. 
CAPUT  BARONI/E  OR  COMITATUS,  in  what  cases  a  woman  shall  be  endowed 
thereof,  121.  ' 

CASTLE,  when  a  woman  is  dowable  of,  121. 

CERTIFICATE  of  the  ordinary,  question  of  marriage  is  to  be  tried  by  in  writs  of 
Dower,  12.     What  sufficient,  288,  note. 

CESSET  EXECUTIO,  when  judgment  in  Dower  shall  be  with,  299. 

CHARGES  made  by  the  husband  being  tenant  in  tail  prior  to  the  attachment  of  Dower, 
good  against  the  wife  although  void  against  the  issue  or  remainder-man,  162. 

made  by  husband  after  marriage  void  against  dowress,  238. 

Exceptions,  241.     So  if  made  by  the  heir  after  husband's  death,  238. 

CHATTEL  INTERESTS,  a  woman  not  dowable  of,  47. 

limited  prior  to  the  estate  of  the  husband  no  impediment  to 

title  of  Dower,  although  they  postpone  the  enjoyment,  78. 

COLLATERAL  LIJVIITATIONS,  Dower  defeated  by  operation  of,  162. 

COAL  PITS.     See  Mines. 

COMMISSION  to  assign  Dower  decreed  in  equity,  273,  323. 

COMMON,  a  woman  is  dowable  of,  if  certain,  112, 114.     Not  if  sans  number,  12-3. 

COMMON  RECOVERY  by  the  husband  alone  does  not  defeat  Dower,  14.5.  Other- 
wise if  the  wife  joins,  192.  Falsification  of  recovery  by  dowress  is  quousque  only, 
152.  Dowress  is  a  necessary  party  to  make  a  tenant  fo  the  prEecipe,  340.  See 
Recovery. 

CONDITION  that  wife  of  grantee  shall  not  be  endowed  is  void,  82.  An  estate  made 
in  performance  of  a  condition  is  subject  to  Dower,  100.  Re-entry  for  breach  of 
condition  defeats  a  title  of  Dower,  153.  Condition  cannot  be  annexed  to  an 
assignment  of  Dower,  264.     See  Dowress. 

CONDITIONAL  LIMITATIONS,  whether  they  defeat  Dower,  168. 

CONTINGENT  REMAINDER,  whether  interposition  of  prevents  attachment  of 
Dower,  61.  When  destroyed  by  the  union  of  the  estates  between  which  it  is  in- 
terposed, 66,  67,  69.  The  vesting  of  may  defeat  a  title  of  Dower  by  relation,  68, 
note,  73. 

CONTRACT  for  sale  of  lands,  is  a  bar  in  equity  to  the  Dower  of  an  after-taken  wife, 
106.  Cannot  be  carried  into  execution  against  a  wife  entitled  to  Dower,  and 
whose  husband  dies  before  fine  levied,  201.  By  person  whose  wife  is  dowable 
and  refuses  to  join  in  a  fine,  whether  he  will  be  enforced  to  procure  her  concur- 
rence, 202. 

CONUZEE  of  a  fine  sur  grant  et  render,  his  wife  is  not  dowable,  44. 

COPARCENER,  wife  of,  is  dowable,  42. 

COPYHOLDS,  no  Dower  of,  48.  Grants  of  by  husband  after  marriage,  good  against 
dowress,  244. 

■ ,  see  Dowress.     Freebench. 

CORN  sown,  when  a  dowress  shall  have  it,  354. 

COSTS,  when  given  to  a  dowress  at  law,  310 ;  in  equity,  332. 

COVIN,  avoids  an  assignment  of  Dower,  269. 

COURTS,  a  woman  is  dowable  of  the  profits  of,  113. 

CROWN  DEBTS,  dowress  has  a  right  to  have  her  estate  exonerated  from,  352,  362. 

CROWN  OF  ENGLAND,  a  woman  is  not  dowable  of,  121. 

CUSTODY  OF  A  GAOL,  a  woman  is  dowable  of,  113. 

CUSTOM,  that  alienation  by  husband  alone  shall  be  a  good  bar  to  Dower,  245. 

DAMAGES,  when  recoverable  on  writs  of  Dower,  301. 

DEATH  OF  HUSBAND,  as  completing  title  of  Dower,  considered,  247. 

DECLARATION  OF  USES.     See  Fine. 

DESCENT  cast,  is  avoided  by  an  assignment  of  Dower,  142. 


INDEX.  183 

DETINUE  OF  CHARTERS,  when  a  plea  in  Dowur,  V>IM.     Dcoying  deUoue  friwly. 

is  a  furtiiituro  of"J)u\V(  r,  227. 

DISACJREEMENT.  TIk;  witij  may  iliuaprrce  to  a  joint  estate  inaile  tu  Utt  and  her 
hiishuiul  (Jurinjr  coverture,  uihI  brinjj  Dower,  40. 

DISSEISOR,  wife  of.  is  dowable,  ;<7.     ll»r  titlf  of  iKjwer  i-  rr*tura- 

tioii  ol  the  seisin,  141.     May  a.^sijjn  Dower  in  H>ine  caw  -, 

DISCONTINUEE,  wife  of,  is  dowable,  87.  Her  title  of  Dower  u  delmlnl  by  tiae 
restoration  of  the  original  seisin,  112. 

DlVOiiCES,  their  elfects  as  to  Dower,  20. 

DOS  DE  DOTE,  'A,  l.")l,  I.'m. 

DOVEHOUSE,  a  woman  is  dowable  of,  \l',\.     How  to  t)o  awiffiicd,  2.V2. 

DOWER,  an  object  of  great  tiivour  at  the  common  law,  2.  Cuuhc  of  ilio  uapopulanty 
of  in  modern  times,  li.     Ad  ostium  ecclesui-,  4,  lli^l     K'  .  ib.     I)e 

la  i)his  belle,  4.     By  the  custom  of  gavelkind,  ib.     OfU-  iJefi- 

nition  of  Dower,  5.  Does  not  arise  by  contract,  but  by  o|)i;m.i.i.i]  .a  i,n\,  lo.  Title 
of,  cannot  be  restrained  by  any  condition  or  provitso,  H2.  Sec  Table  of  Cootvnla, 
and  this  Inde.x,  under  tlie  dillL'rent  heads. 

DOWRf^SS  is  in  in  the  per,  102,  341;  and  yet  by  the  law,  ib.  Whether  slic  may  be 
seised  to  an  use,  102.  Her  estate  shall  not  be  exl<'nded  on  a  btii'.i!.-  m  Limiw- 
lodged  before  marriage,  during  the  minority  of  the  heir,  2^17.     Af'  nl, 

must  join  in  making  tenani  to  the  praecipe,  340.     Is  in  by  the  hu.-'l  i  ;h« 

heir,  ib.  And  by  relation  to  her  husband's  death,  so  as  to  avoid  all  n,'  :.■  »iin», 
340,  343.  Is  attendant  to  tiie  heir  tor  the  services,  344.  .May  grar.i  <  , ...  -,  Ml. 
Whether  she  can  take  advantage  of  a  condition  of  re-ontry  in  a  leaM.-  lur  yeara, 
347.  When  she  shall  take  advantage  of  an  escheat,  34*^.  .May  redeem  a  mort- 
gage for  years,  350;  and  a  mortgage  in  fee  in  some  cases,  JJiil.  Must  rtiick  land 
proportionally,  of  which  she  is  endowed  in  common,  3.'y).  .Must  contr.bule  to 
charges  of  an  office,  ib.  And  to  rent-charge.s,  3r>7.  Cannot  comnnt  wa«tte,  ib. 
Cannot  alien  hut  Kir  her  own  life,  .301.  Not  to  be  charged  with  hnsl<ahd'e  d<-bti^ 
contracted  after  marriage,  302.  Siiall  have  the  benefit  of  attendant  term.-,  when, 
363. 

EJECTMENT  cannot  be  maintained  by  dowress  till  after  assignment,  283. 

ELECTION,  widow  may  be  put  to  as  to  her  Dower,  in  some  cases,  2til. 

ELOPEMENT,  when  a  bar  to  Dower,  223. 

EMBLKME.NTS,  a  dowress  is  entitled  to,  IVio. 

ENDOW.MENT  by  the  King  in  Ciiancery,  284. 

.     See  AssiL''iniient. 

ENROLME.NT  OF  BARGAIN  AND  SALE,  for  what  purpoacs  it  shall  relate  to  the 
execution,  2!>. 

ENTRY  BY  HUSBAND,  when  necessary,  in  order  to  a  title  of  Dower.  .'M. 

EQUITABLE  ESTATES,  not  subject  to  Dower,  124,  el  sr,/. 

EQUITY,  COURTS  of,  will  relieve  against  titles  of  Dower,  merely  lejfal,  KM.  KM. 
100. 

of  relief  in  for  Dower,  317.     Will  not  try  the  right  to  Dwrr.  if 

disputed,  32!).  Will  decree  an  account  of  nnts  and  protil.M  to  a  d.>wr^•^NIC^O. 
Will  a.«sist  a  dowress  with  a  di.-^covery,  320.  Will  asaign  Dower  by  conimuMO, 
273,  .323. 

EQUITY  of  redemption  on  a  mortgaire  in  fee,  a  woman  is  not  dowable  of.  137.  Other- 
wi.>;e  on  a  mortgage  tor  yeans  140. 

ESCHEAT  does  not  defeat  a  title  of  Dower,  l.'>"'. 

.     See  Dowress. 

ESTATES,  of  what  kinds  of,  a  woman  is  dowable,  47.  Not  oi  .  int;.-  ;iu.  r.-i;..  ly. 
Nor  of  estates  of  mere  freehold,  4'< ;  althou!:li  descend ible  t.i  hnn-.  ih.  .NW  c/ 
estates  e.vpectant  on  a  prior  estate  of  t'reehold.  '<^.  Downble  of  a  I  -  •■  '•  -  >"  .or 
a  qualifievl  fee,  ib.     The  freehold  and  inheritance  mn.-t  b«'  in  the  hi.  •'  rl 

semcl,  5().     An  interposed   vested  estate  of  freehold  prevent-*  Oi.  J^of 

Dower,  57,  73.     No  Dower  of  an  estate  limited  lo  two.  and  •  --'"'"'•i^ 

Whether  an  interposed  contingent  estate  for  years  is  no  u\r  ..      Th« 

determination  or  surrender  of  the  immediate  or  prior  rstnle  lets  in  ii'«-  •'''^" 
Dower,  74,  70.  Although  the  surrender  is  ujwn  condition,  an  Iwig  «"  ""'  fw«w»- 
tion  is  not  broken,  75.     Estate  for  years  prior  to  Uie  estate  of  the  ho»l«n«l  w  no 


184  INDEX. 

ESTATES— Continued.  .  «^     o         . 

impediment  to  Dower,  76,  Nor  an  interposed  estate  for  years,  77.  bo  as  to 
chattel  interests,  78.  Estate  of  the  husband  must  be  such  as  his  issue  by  the 
woman  claiming  Dower  may  inherit  to,  79. 

ESTATES  TAIL,  Dower  is  not  defeated  by  the  determination  of,  79, 158. 

. IN  FEE,  the  escheat  of  for  default  of  heirs,  does  not  defeat  Dower,  158. 

IN  FEE  SIMPLE  COxNDITIONAL,  a  woman  is  dowable,  although  de- 
termined by  failure  of  issue,  158.  _     . 

ESTATES.  See  Equitable  Estates,  Collateral  Limitations,  Conditional  Limitations, 
Executory  Devises. 

ESPOUSALS,  for  what  purposes  considered  as  matrimony,  8. 

ESTOPPEL,  demandant  in  a  writ  of  Dower  shall  have  advantage  of,  297,  and  be 
bound  by,  ib. 

ESTOVERS  granted  to  one  in  fee,  his  wife  is  not  dowable  thereof,  113. 

EXCHANGE,  wife  not  dowable  of  lands  taken  in  exchange  at  common  law,  till  entry 
by  the  husband,  34.  Otherwise,  if  by  conveyance  to  uses,  35.  Widow  may  be 
put  to  her  election  to  be  endowed  either  of  lands  given,  or  lands  taken  in  exchange 
after  marriage,  261.  Exchange  made  before  marriage  good  against  dowress,  al- 
though not  executed  till  after  marriage,  235. 

EXECUTION  on  judgment  in  Dower,  how  given,  299. 

EXECUTORY  DEVISES,  whether  the  operation  of  defeats  Dower,  168. 

EXTINGUISHMENT  OF  RENT,  [TENANCY,  &c.  by  act  of  husband,  not  good 
against  dowress,  239. 

FAIR,  a  woman  is  dowable  of,  113.    In  what  manner  to  be  endowed  of,  252. 

FEALTY,  a  woman  is  not  dowable  of,  123. 

FELONY,  attainder  of  by  the  husband,  not  a  forfeiture  of  the  wife's  Dower,  217. 
Attainder  of  by  the  wife  forfeits  her  Dower,  222. 

FINES  of  copyholds,  &-c.  a  woman  is  dowable  of,  113.     How  to  be  endowed  of,  2.52. 

FINE  levied  by  husband  and  wife,  discharges  the  title  of  Dower,  192.  Proclamations 
not  necessary  for  that  purpose,  195.  The  fine  must  import  a  grant  of  the  fee,  or 
of  an  estate  of  freehold,  196.  Fine  creating  a  chattel-interest,  only  suspends  the 
Dower,  ib.  If  no  declaration  of  use  is  made,  the  wife  becomes  again  dowable  of 
the  resulting  use,  ib.  A  subsequent  declaration  of  the  use  would,  it  seems,  defeat 
the  Dower,  197.  Wife  not  a  necessary  party  in  declaring  the  use  of  a  fine,  in 
order  to  bar  her  Dower,  200.  Whether  a  fine  will  in  equity  be  restrained  to  the 
particular  purpose  for  which  it  was  levied,  in  favour  of  the  dowress,  207. 

FORFEITURE  of  Dower,  what  act  will  produce  it,  217,  et  seq. 

FRANCHISES,  when  a  woman  is  dowable  of,  112,  115,  349. 

FREEBENCH,4,  29,  106,  128. 

FREEHOLD,  the  avoidance  of  by  title  paramount  defeats  Dower,  154. 

.     See  Estates,  Suspension. 

GUARDIAN  cannot  assign  Dower,  266,  304. 

HEREDITAMENTS  real,  a  woman  is  dowable  of,  113.  Not  of  personal  heredita- 
ments, as  an  annuity,  ib. 

HERIOTS,  a  woman  is  dowable  of,  113.     How  to  be  endowed  of,  2.52. 

HOMAGE,  a  woman  is  not  dowable  of,  123. 

HOUSES.     See  Buildings. 

HUNDRED,  whether  a  woman  is  dowable  of,  123. 

H  USBAND,  his  alienations  and  charges  considered  with  reference  to  the  title  of  Dower, 
231,  et  seq. 

seised  jure  uxoris,  may  assign  Dower,  268. 

.  cannot  bind  his  wife,  who  survives,  by  acceptance  of  less  Dower  than  she 

is  entitled  to  out  of  the  estate  of  a  former  husband,  279. 

JAIL,  a  woman  may  be  dowable  of  the  custody  of,  113. 
IDIOT,  wife  of,  whether  dowable,  16. 
JEWESS,  whether  dowable,  229. 


INDEX.  195 

IMPROVEMENTS  made  by  alienee  of  husband,  whether  to  be  eii«(mt«l  la  vmr^-ng 

INCORPOREAL  HEREDITAMENTS.  w»uii  aouim  of  nec<j-.r»  to  ccokt  •  Utk  oT 

Dower,  ',i'). 
INFANT  rimy  jissign  Dower,  26H. 

INTERES'I'  not  given  in  equity  on  arroarw  of  Dower.  'XfZ. 
JOINTENANT,  the  wife  of,  is  not  tlowable,  :^.     Altlioujfh  he  tntkta  a  ftotfrnnH  ta 

fee  of  hi.s  moiety,  4;i. 
JOINTENANT  may  assign  Dower  in  some  caws,  2»r7. 
ISSUE,  not  necessary  that  tlie  wife  should  have  ii«uo  to  entitle  her  to  iKiwcr.  "^i    h(,c 

18  dowahle,  although  married  at  an  age  when  she  u  mcapebic  of  imuv,  hi. 
JUDGMENT    in  writs  of  Dower.  ViOH.     How  given   when  it  u  uncerinn  w»»*tii« 

the  husband  ia  dead,  247.  When  against  vouchee,  when  t^uut  teiunl,  VTTtt,  'S?*. 

KEEPERSHIP  of  a  park,  a  woman  may  be  dowable  of,  112,  252. 

LEASE  for  life,  made  prior  to  marriage,  prevents  attachment  of  DoworoB  tht  iwer- 
sion,  53,  5.3.  Lease  made  pubseciuent  to  attachment  of  Dower,  void  iMlMt  tbe 
wife,  49,  233.  Lease  by  tenant  for  life  to  lessor,  for  tlie  life  of  the  Ie«or,  the 
lessor's  wife  is  not  dowable,  .'>S.  Lease  lor  years  made  prior  to  marra^  ia  no 
impediment  to  the  attachment  of  Dower,  although  it  poetixmes  tiie  cnjoyincot,  78. 
Dowress  becomes  entitled  to  the  rent,  77.  Ix;ase  made  by  tenant  m  tail  bdbrc 
marriage,  good  against  the  wife,  although  void  against  the  isnue  iu  tail  or  remun- 
der-man,  162,  23G.  Acceptance  of  lease  by  dowress  a  waiver  of  her  riiflit  to  Duwer 
214.  * 

LESSEE  for  years,  cannot  assign  Dower,  266. 

LIBPjRTIES  savouring  of  the  realty,  a  woman  is  dowable  of,  112. 

LIMITATIONS,  statutes  of,  do  not  apply  to  Dower,  ;311. 

LONDON,  Dower  barred  by  bargain  and  sale  enrolled,  or  by  recovery  ju  11'..-!,;  ^' 
Court,  195. 

LUNATIC,  wife  of,  whether  dowable,  16. 

MANOR,  a  woman  is  dowable  of.  111. 

MARKET,  a  woman  is  dowable  of,  113.     How  to  Le  endowed  of.  252. 

MARRIAGE,  circumstances  requisite  to,  for  the  purposes  of  IXiwer,  7.  M.rriA;* 
contracts,  unaccompanied  with  celebration,  do  not  confer  a  title  of  Dower,  ^  I  /■• 
of  the  Marriage  Act  as  to  Dower,  9.  The  legality  of  the  marriage  cannot  U  u..^i 
in  the  temporal  courts  in  Writs  of  Dower,  11,  2'.Hl  ExceptionH  to  that  rule.  12, 
289.  What  evidence  of  marriage  neci'ssary  in  the  Bu<hop'B  Court,  IH.  Voidable 
marriages  confer  a  title  of  Dower,  unless  avoided  in  the  life-time  of  the  huafaand. 
14.  But  not  marriages  actually  void,  14.  Ot  marriages  by  a  layman,  15.  By 
Romish  priests,  ib.  Marriages  in  foreign  countries,  when  valul,  21.  In  SrolJarMi, 
22.  Marriage  procured  by  subtlety  of  the  wife  confers  no  title  of  Dowt-r  m  Ire- 
land, 227. 

MARRIAGE  SERVICE,  observations  on  tlie  passage  "  wiUi  all  my  worldly  pood«  1 
tliee  endow,"  133. 

MARSHAL  OF  ENGLAND,  a  woman  is  not  dowable  of  the  office  of,  112,  Dole. 

MARSIIALSEA  OF  TIIE  KING'S  BENCH,  a  woman  is  dowable  of.  112. 

MERGER  of  the  particular  estate  of  freehold,  gives  occasion  to  a  title  of  l>owcr.  56, 
•Enquiry  whether  there  is  any  merger  of  estates  limited  witli  an  mlrr 


contingent  remainder,  62. 
MILL,  how  a  woman  is  to  be  endowetl  of.  252. 
MINES,  in  what  cases  a  woman  is  dowable  ot'.  115.   How  to  l>o  endowed  of  them.  2S!l 

Whether  they  are  to  bo  estimated  in  assigning  flower.  2.>.    Wliat  may  be  woriMd 

by  tenant  in  Dower,  2.")9.  358. 
MONRY  to  be  laid  out  in   land,  a  woman  is  not  dowable  of.  l.'W. 
MORTGAGE,  when  a  dowress  may  redeem,  :\rt().     Sfiiibl.  Tlint  nhe  mar  be  Irt   m  la 

redeem  a  mortgage  in  fee  in  some  cases,  209.     Has  a  right  to  liavc  her  w<*u-  «■ 

onerated  from  mortgages,  3.')1. 
MORTGAGE!':  taking  an  assignment  of  an  attendant  term,  may  defend  him»elfa£»ii»« 

Dower,  li'^.'x 
MORTGAGEES,  of  tiUes  of  Dower  ia  the  wives  of,  100. 
Vol.  IX.— 2  R 


186  INDEX. 

NAVIGATION  SHARES,  a  woman  is  dowable  of  in  some  cases,  113. 

NEW  RIVER  SHARES  are  real  estate,  113. 

NONAGE.    The  parol  does  not  demur  for  the  nonage  of  the  heir  in  a  writ  of  Dower, 

298. 

OFFICES,  a  woman  may  be  dowable  of,  112.     In  what  manner  to  be  endowed  of,  252. 

She  must  contribute  to  the  charges  of,  356. 
OUTLAWRY  of  husband,  whether  it  shall  hinder  the  wife  from  recovering  damages 

for  detention  of  Dower,  302,  note. 

PARKERSHIP,  a  woman  may  be  dowable  of  the  office  of,  112. 

PARTITION,  the  wife  of  a  jointenant  making  partition  is  not  dowable  till  the  hus- 
band executes  the  partition  by  entry,  34. 

.  See  Recovery. 

PARTNERS  purchasing  real  estate  as  partnership  property,  when  their  wives  shall  be 
dowable,  106. 

PENSIONS,  ecclesiastical,  a  woman  is  dowable  of,  111. 

PISCARY,  a  woman  is  dowable  of,  112.     How  to  be  endowed  of,  252. 

PLEA  of  purchaser  for  valuable  consideration  does  not  lie  to  a  bill  for  Dower,  327. 

PLEADINGS  in  writ  of  Dower,  145,  287. 

POSSIBILITY,  may  prevent  the  attachment  of  a  title  of  Dower,  72, 

POWER  of  appointment,  whether  the  exercise  of  defeats  Dower,  186. 

PRECONTRACT  no  impediment  to  Dower  at  this  day,  10. 

PROFESSION  (religious)  of  the  husbmd  does  not  accelerate  Dower,  248. 

PURCHASER,  whether  he  has  an  equity  to  have  the  other  lands  not  purchased  by 
him  assigned  to  the  wife  of  the  vendor,  in  exoneration  of  the  lands  purchased,  281. 
Taking  an  assignment  of  a  satisfied  term  may  defend  himself  against  Dowress, 
371. 

PURCHASERS,  when  there  are  several,  of  lands  on  which  Dower  is  recovered,  they 
are  to  be  charged  proportionally,  282. 

.     See  Contract  for  Sale,  Plea. 

QUARENTINE,  250. 

QUARRIES,  whether  a  woman  is  dowable  of,  11-5. 

QUEEN  CONSORT,  is  dowable  though  an  alien,  228. 

RECOVERY  against  the  husband  by  title  paramount  defeats  Dower,  145.  As  under 
the  implied  warranty  on  an  exchange,  1-52,  or  partition,  1.53,  but  not  a  recovery 
upon  a  warranty  ancestrel,  ib.  Common  recovery  brought  against  the  husband 
and  wife  bars  the  title  of  Dower,  192.     So  if  the  wife  is  vouched,  193. 

RELEASE,  titles  of  Dower  may  be  extinguished  by,  after  the  death  of  the  husband, 
212. 

REMAINDER,  limiteu  on  an  estate  in  Dower,  is  void,  341. 

.     See  Contingent  Remainder,  Estate. 

REMITTER  may  defeat  a  title  of  Dower,  143. 

■ a  woman  cannot  be  remitted  to  her  Dower,  335. 

RENT  reserved  on  a  lease  for  life,  a  woman  is  not  dowable  of,  49. 

■ may  be  reserved  for  equality  of  Dower,  on  assignment,  261.  Cannot  be  assigned 

by  the  sheriff  in  lieu  of  Dower  of  the  land,  263,  but  may  by  the  heir,  263,  267. 
May  be  assigned  for  Dower  without  deed,  271.  When  granted  in  lieu  of  Dower 
is  distrainabie  of  common  right,  349. 

reserved  on  a  lease  for  years,  apportioned  when  the  the  wife  is  endowed  of  the 


reversion,  346. 

RENT  CHARGE,  a  woman  is  dowable  of,  although  her  husband  dies  before  receipt 
of,  35,  111,  112,  but  not  if  the  husband  brings  a  writ  of  annuity.  111,  112.  And 
she  is  dowable  although  the  rent  determines  for  want  of  heirs,  1.58,  1.59.  No 
dower  of  a  rent  charge  granted  to  a  man  and  his  heirs  pur  autre  vie,  49.  If  a 
rent  charge  is  made  to  cease  during  the  nonage  of  the  heir,  the  dower  is  suspend- 
ed during  that  time,  163.  Release  of  a  rent-charge  by  the  husband  does  not  de- 
feat h's  wife's  Dower  thereof,  240. 

RENT-SECK,  a  woman  is  dowable  of,  112. 


iNui:x.  187 

ilHNT  SERVICE,  n  •romnn  is  dowublonf.  111. 

UENTH  AM)  PROi'MTS,  accuunt  uf,  decreed  to  »  dowrew  ia  couiti  of  tqaitj,  SSU. 

Sfo  Arrrjirn  of  Dowr-r. 
RESi:i;i"I\(;   use.     Sou  Fine. 
REVERSION  oil  a  luu.su  fur  litu  no  Dower  or,  TtU.     UUierwuM  uo  ui  artsto  fut  jc*n 

7(). 
RIGHTS  OF  EiNTRY,  no  Dower  of,  2'). 

SEISIN,  necessity  of  in  tlic  hiishaml,  to  confer  a  title  of  Dower,  '2A.  Hewio  in  law 
sufficient,  ;n.  VVIi;it  nccesriJiry  as  to  incorix)ri!iil  hereditsinentii,  TCi.  H«i«o  b]f 
relation,  whether  eufficient  for  the  purpom- of  Dower,  *Jf5.  :M),  HI.  Mustbsnio, 
87.     Wliat  (hiralion  of  seisin  nece.s.sjiry  to  confer  n  title  of  lX»wer,  4ii. 

SlIIF'ri.\(;   rSES,  etlect  of  upon  dower.  1(H. 

SI'ECIEIC  1»ERF()R.M  A.NCE.     Sue  Contract  for  Sale. 

STEWARD  OF  E.\(JE.\N1),  a  woman  is  noldowable  of  the  office  of,  112,  nole. 

SURRENDER.     See  Estates. 

SUSPE.XSiON  of  tliu  freehold  of  incorporeal  liereditainenla  excludes  the  atUchoMOt 
of  Duwur,  .")."),  but  not  a  suspension  for  years  only,  77. 

of  right  to  be  endowed,  what  amounts  to,  21«L 

TENANT  IN  CO.MMON,  the  wife  of,  is  dowable,  41. 

TENANT  FOR  LIFE  \sho  makes  a  feotruient  m  fee,  his  wife  does  not  become  dowa- 
ble, 43. 

TENANT  IN  TAIL,  alienee  of,  has  a  base  fee,  and  his  wife  i«  dowable,  M,  142. 
Conveyances  by,  whi'ti  void,  when  voidable,  'S-V-i. 

TENANT  TO  TliE  PRAECIPE,  wife  of,  is  not  dowable,  105,  nole. 

TENANT  by  the  curtesy,  ;542. 

TE.VE.MENTS,  a  woman  is  dowable  of  all,  110.     Meaning  of  the  word,  ibid. 

TENURES,  when  a  woman  is  dowable  of,  112,  123. 

TERM  OF  YEARS  limited  prior  to  the  estate  of  the  husband  no  impcdinienl  to  Dow- 
er, 77.  So  of  an  interposed  term  of  years  between  tiie  freehold  oiid  inhcntaoc« 
of  the  husband,  ibid. 

TIME  no  bar  to  a  writ  of  Dower,  311. 

TITHES,  a  woman  is  dowable  of.  111.     How  to  be  endowed  of,  'Shi 

TRUSTS.     See  Equitable  Estates. 

VOUCHER  in  Writs  of  Dower,  275, 27<;,  298. 

USES,  no  Dower  of,  before  the  statute  of  uses,  125. 
•  to  prevent  Dower,  observations  on,  83. 

WAIVER  of  right  to  be  endowed,  what  amounts  to,  214. 
WARRANTY,  no  bar  to  Dower,  315. 

by  tenant  in  Dower,  3til. 


—  on  assiijfnment  of  Dower,  nature  of.  27.). 
— .     See  Recovery. 


WASTE,  what  is,  by  dowress,  357. 

remedies  of  reversioner  for,  359.  r.u. —^i  «f  ii^ 

WESTMINSTER  AHBEY,  a  woman  is  dowable  of  thecuitody  oftUe  gaol  ol,  113. 
WINCHESTER,  Dower  i)arre<i  in  by  d.'.-d  ei.rollrd.  HkTh  ,  .^ 

WRIT  OF  DOWER  UNDE  NIHIL  HAni:'r,>3.     \Nri  of  "g»>t  of  I^wer.^ 

Against  whom  a  writ  of  Duwer  may  be  br.M.-ht,  -'s...     Procc-  oo.  JKi.     PU»d- 

ings  in,  2"^7.     Judgment  in,  21K     Dumagea  in,  301. 

of  error  in  Dower,  310. 

.  of  admeatjurcmcut  of  Dower,  273. 


THE  END. 


BRARy 

R 


LAWLIBRAKT 

UNIVERSITY  OF  CALIFORNIA 

LOS  ANGELES 


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